Wednesday, May 31, 2017

Decolonization in the Caribbean #13: Sovereignty...According to an Old Flame

For those of you who don’t know, my dissertation in Ethnic Studies dealt with sovereignty, most specifically Guam’s role in producing America’s sovereignty, or what role its invisibility or nothingness plays in producing America as sovereign. This may sound confusing, but what makes it difficult for most to wrap their heads around, is the simple fact of saying that something which has been for hundreds of years produced discursively as being “small” or “faraway” or “faint” or “owned by the US” as somehow creating something as great and grand and mighty as the United States of America.

One frustrating aspect of writing my dissertation was the preparing of a literature review, which is a sometimes helpful, sometimes useless review of what others have written about your topic of choice and how you will either use and build on them or defy them. If you are familiar with the bulk of work on sovereignty it all basically says the same thing nowadays, drawing mildly different conclusions around assertions that no one can really contest. In historical terms, meaning the development of sovereignty over the past 500 years for example, the ideas of the late US Senator Alan Cranston are not so different then the conceptions of Antonio Negri and Michael Hardt. (they draw the same basic genealogy and end up in the present day with a similar crisis, but naturally use different languages (can you imagine Alan Cranston talking about transcendence vs. immanence?) and promote different political projects for those today seeking to reconcile the shifts taking place today). There are some Native scholars who have more interesting versions or definitions of sovereignty, but these are not the conceptions which underpin Guam’s colonization and so I did not address them as much in my dissertation.

For those unfamiliar with sovereignty, I’ll provide a short history. Sovereignty begins largely in religious terms with political effects. It is a theory of rights and relations between those who govern and those who are governed. The explanation for the right to rule, the existence of a sovereign power who was considered to be unchallengeable within their domain, derived from a divine source. The source of sovereignty, is therefore outside of the earthly world, and whatever political or physical body that sovereign power is collected in within this world is not to be constrained by any limits other than what is defined from the source of said sovereignty.

Given this framework, power is theoretically absolute and the sovereign is not accountable to those who he governs, but rather the source of his sovereignty, namely God. On earth this transmission of sovereignty and power rarely runs so smoothly. In the Middle Ages for example, the powers of both the Church and the King were articulated to share the same source, yet each had different functions and intentions in the world around them.

We find an important shift in the source of sovereignty in the 17th and 18th century with the work of philosophers such as Thomas Hobbes and Jacques Jean Rosseau who attribute in different ways to an earthly source, namely the people of a nation or a society. This shift takes place and is codified for a number of different reasons, such as development of different technologies which allowed people across great distances to nonetheless imagine themselves as being the same, the shift from the way populaces are governed and power is located (art of government to governmentality), and also the work by men such as the Brothers Grimm who would assist in the “invention” of peoples and traditions through the collection of “folk” tales which would become the “history” of nations.
What follows though the above mentioned diffusion of power in society is also the diffusion of sovereignty. One could almost say that it disappears from the equation, just as the brutal violence of the sovereign’s law becomes displaced by the banal control of norms.

The issue in all of these articulations is where the source of sovereignty lies, in the divine? The social? In Reason? But what happens with the rise and formalization of European nations, starting with the 1648 Treaty of Westphalia and later the clear rise of modern nations and articulations of modern international law in the 19th century, is the shifting of discussions of sovereignty to a formal level whereby external recognition becomes a defining characteristic. The source of sovereignty in most texts becomes externalized within the family of nations, meaning the sovereignty of a nation is dependent upon its matching particular requirements “nations” collectively share and also the recognition of sanctity the borders that said nation claims.

Before continuing, it is important to note that although the way a thing called “sovereignty” is formalized and accepted and becomes part of a general framework which is supposed to govern the conduct between nations. Texts which deal with sovereignty do not necessarily address the production of a nation’s sovereignty, or what networks of power, meaning, force and material accumulation have to go into authorizing the right or naturalness/acceptability of a particular political act, program or relationship. (So to connect this to my project, how is it that the United States, besides a simple citation of treaties, appears to hold a natural, expected right to Guam, which lies beyond any simple questioning or problemtization?)

Instead most texts deal with a basic thing called sovereignty, which is never produced, but merely changes over time, and is today in crisis by extranational organizations, Imperial ambitions of First World Nations and Rhizomic terrorist cells.

For me, the assumption of a concrete and formal form of sovereignty is useless for thinking about Guam and its position today. Why? Because if we assume that sovereignty is a zero-sum equation (you have it or you don’t have it) or at its most extreme, force/pressure against a legal right (neocolonial influence), then the issue is merely to include Guam within the current global framework for nation-state belonging. Or in other words, get sovereignty for Guam.

In some ways, this is precisely what I along with a small but significant number of people on Guam want: political independence for Guam, and the opportunity to join the rest of the world as some sort of equal partner. But does the receiving of sovereignty in this formal way really mean receiving either of these things? If we look at the nations that have decolonized over the past 50 years, they are hardly equal with their former colonizers, since the world that awaited their freshly forged national souls and cultures, was one defined by itchy and greedy neo-colonial figures, trapping them in the same structurally inequitable relationship, although now with less odor from colonialism. For more evidence of the meaningless of formal sovereignty for small, developing and newly decolonized nations, we need only look at the islands in the Micronesia that surround Guam.

Islands such as Palau have formal sovereignty, but if we look closely at the history of their negotiations with the United States and even the way their government and economy is situated today, the political existence of Palau demands that we redefine sovereignty so that it can mean something, since if the formal sovereignty that Palau has is supposed to be sovereignty, then sovereignty means nothing.

Only the worse American apologist would argue that Guam has sovereignty right now. And only a foolish and idealistic person would argue that Guam is currently on some natural and self-correcting road to getting meaningful sovereignty. The history of sovereignty’s changes and development, instead of reconciling the colonial relationships that places such as Guam, Okinawa, Puerto Rico, Hawai’i and indigenous peoples represent, instead develop quaint footnotes or states of exception where these places reside politically. Nowadays, these states of exception are not insane, chaotic places, but ones which take on very formal appearances. They can be invoked, they can be detailed, they can be studied and visited, without those making these gestures of study or reference seeing the need for any sort of resolution of the conflict, the contradiction, the hypocrisy that those states of exception represent.

Take for instance an October 29, 1971 Pacific Daily News editorial titled “U.S. Colonialism.” In it the editor discusses and marginally decries US colonialism in the Micronesia region, without making any reference to the US colonialism going on in Guam! Guam is invoked in the editorial, but only in order to provide reference for the approximate size of British colonies in the Pacific, not because of the need to discuss American colonial sins or guilt there. For this editor, the ambiguous political existence was not sufficient enough or tangible enough to support even the mere mention of Guam as a US colony, instead it simply faded into the background and become the natural ground beneath his articulation.

In the world today, colonialism is not supposed to exist, or is supposed to be eradicated by the year 2020. (The UN is now in its Third Decade of attempting to eradicate colonialism from the world. It recognizes 17 remaining colonies (including Guam) in need of decolonization). Therefore, the way to analyze and view Guam and its relationship to the United States and the rest of the world is not through the formal rules of governance, but through the informal, obscene world of political meanings.

We can find this point in a hilariously depressing way in the following clip, which is a statement by then President George W. Bush, during the 2004 campaign, on tribal sovereignty.

Question: What do you think tribal sovereignty means in the 21st century, and how do we resolve conflicts between tribes and the federal and the state governments? 
 
President Bush: Tribal sovereignty means that; it’s sovereign. You’re a — you’ve been given sovereignty, and you’re viewed as a sovereign entity. And, therefore, the relationship between the federal government and tribes is one between sovereign entities.

A number of things achieve an almost banal and confusing clarity in the stumbling of Bush. First, Bush makes the mistake of breaking from sickly common sense by stating that sovereignty is “given,” a point which is completely true (for every nation state, sovereignty is dependent upon it being given in the sense that it is not questioned, critiqued or worked actively to be undermined), but reveals the clear condescending gaze of the US against Native Americans. Second, in his constant reiteration of “sovereignty meaning sovereign” we get past the chauvinistic tautology of “my decision is my decision,” and get into the meaningless repetition as the cover for an obscene meaning which cannot be adequately covered over by any formal terms.

Of course Bush doesn’t believe it, probably doesn’t even understand what he’s talking about or what is happening. But above board, meaning formally, he is right, right? There has been an elaborate legal maze that has been developed around this issue whereby the formal alludes to a civilized, legal, adult, productive relationship between the US and tribes, where there is no colonization, but only mutually recognized sovereignty entities.

Within the world of the obscene however, which sadly more closely resembles the world around us, colonialism is not just alive and well, but necessary and accompanied with all manner of infantilized, racialized, primitivized mythology to back it up. The formal only goes so far and once its cover of you ends, you tend to wallow in unintelligibility along its margins, since there is not supposed to be any calculus to measure the breadth of the obscene.

To continue with Micronesian examples, let’s start with The Solomon Report. For those of you who don’t know what this is, it was a report commissioned in the early 1960’s by President Kennedy, which is basically an outline for ensuring a dependent and intimate relationship between the United States and what was at that time the Trust Territory and is now, the Commonwealth of the Northern Marianas Islands, The Federated States of Micronesia, Republic of the Marshall Islands and Palau. Here is a line from the report which stresses the importance of these islands, “Micronesia is said to be essential to the U.S. for security reasons. We cannot give the area up…” 

Formally what took place during the 1960’s – 1990’s in the rest of the islands in Micronesia (fuera di Guahan) were processes of decolonization, which by virtue of even this limp facade attested to the strategic value of these islands. In The Solomon Report, because of its clandestine character, the need of the United States is expressed and laid bare. In order to create a buffer in the Pacific, and to effectively control a huge portion of the entire globe, we must have these islands. But naturally, this cannot be spoken of, cannot be laid on the table, it cannot truly enter into the formal world of negotiations which created all these new exciting island governments and states. Instead this need stays obscene, beneath the proceedings, drawing from racist and infantilized notions to reverse and make invisible the needs of the United States, by fabricating from notions of islands being backwards, economically unsustainable, culturally lazy and so on, that it is truly these islands that need the United States. But this isn’t some isolated instance of dependent reversal. This is a gesture which produces sovereignty, it projects the needs of the subject of sovereignty to the object of sovereignty, thereby creating the subject as one distinguished by a lack of such mediated concerns.

In Hobbes for example, those governed, beneath the watchful eye and hovering boot of sovereign power are mediated by appetites and aversions, that constantly infiltrate them and turn them into petty, pitiful creatures of limited vision. Their appetites constantly push them into more and more precarious positions of risk, danger and near death, but because aversion and fear governs them as well, they constantly pull back in loyalty to the ultimate human moment of fearful oblivion, the aversion to death. Therefore, in an articulation of sovereignty surprisingly close to Bataille’s, the realm of the sovereign is not just to decide the conditions of life and death, but that it is also to be beyond such concerns.

Thus formally, this dependent relationship is codified, but this formal surface tells us nothing about the obscene web of meaning which both forced these neocolonial relationships and structured the state of exception that these islands exist in.

Throughout my dissertation I made my commitment to exploring the “obscene” dimensions of sovereignty, using evidence, such as the George W. Bush quote that some might find ridiculous in terms of articulating a sound theoretical foundation. As Guam is a colony, the formal rules exist to pin it down, to neutralize it, to take away its claims to existence. This is why exploring the realms of the banal and the obscene was necessary. As Slavoj Zizek writes in Welcome to the Desert of the Real, If you cannot change the explicit, formal rules, then you must work to change the underlying, unwritten obscene rules.

The history of sovereignty means little for explaining Guam’s current geo-political existence, meaning its banal and exceptional status. Such histories persistently focus on the way sovereignty as a concept has changed over time, the unifying notion of a historical continuity or development leading them to put aside the fact that sovereignty is something which must be produced and reproduced at every moment, and what means and methods must always be deployed in order to maintain a regime beyond mere material/violent assertions of authority.

Sovereignty as it is dominantly understood relies upon a communal recognition, that sovereignty is not so much produced as brought into existence by a recognition of a nation’s right. This means nothing for Guam, as sovereignty the way I understand the relationship between the US and Guam relies on clear misrecognition. Whereas the traditional notion of sovereignty requires a shared understanding, a conscious clarity, to understand the relationship between Guam and the US, we must interrogate clear ambiguity, invisibility, banality.

Monday, May 29, 2017

Decolonization in the Caribbean #12: More on the USVI Constitituion

There is a strangeness when you consider independence movements of the past with the formal process today as outlined by the United Nations and international conventions. Independence movements of long ago were, as you might imagine, violent. Colonizers didn't want to give up their conquests and fought wars to try to prevent those they had colonized or settler communities that had developed their own sense of local identity, from becoming self-determined. Untold numbers died and suffered needlessly for this selfishness and cruelty, eventually these colonies led to conflicts between colonizers.

The international system was formed out of those violent, tragic and horrible battles to keep hold of territories and control the lives of entire peoples and their resources. It was developed over time, not necessarily to protect or help those who had been victimized, but rather help decrease the chances of any further conflict between colonial and imperial powers. The basic rules or conventions for decolonization today are meant to provide a guide through which a colonizer and a colonized people can work together in order to push the colonized towards greater self-government and self-determination. 

Part of the problem with this though is that it assumes a willingness by the colonizer to support the process, rather than control it or simply deny it completely. In most instances, colonizers do not like to be told they are colonizers, and do not like to be told what they are supposed to do with territories that they consider to be theirs and no others. We find this problem for instance in terms of the writing of constitutions within the US insular empire. The writing of a constitution is supposed to be sacred, it is supposed to reflect the desires of a people, where they have come from, what they have faced and where they want to go next. It is not something that should be taken lightly and not something any other people should dictate. But in the experiences of Guam, the US Virgin Islands and others that have gone through or attempted to go through a decolonization process with the US, show that the US has no interest in supporting such a sacred process. It will interfere in small and massive ways, and will completely ignore the interests or the desires of those colonized in order to pursue its own selfish interests. 

I wrote briefly last week about the US Virgin Islands and their experiences. Here below is some testimony from 2010, when the US Congress held a hearing on their draft constitution. Take special note to the testimony from the US Department of Justice, in order to see how problematic the entire process was and could be.


*************************

Wednesday, March 17, 2010
U.S. House of Representatives 
Subcommittee on Insular Affairs, Oceans and Wildlife
 Washington, D.C. 

The Subcommittee met, pursuant to call, at 2:10 p.m. in  Room 1324, Longworth House Office Building, Hon. Madeleine  Bordallo presiding.

Present: Representatives Bordallo, Sablan, Christensen,  Pierluisi, Young, and Flake.

Ms. Bordallo. Good afternoon, everyone. For those who are  standing in the back, we do have chairs on the lower dais here.

You are more than welcome to be seated. The hearing by the Subcommittee on Insular Affairs, Oceans, and Wildlife will come to order. The Subcommittee is meeting today to receive testimony on the proposed constitution of the United States Virgin Islands submitted by the Fifth Virgin Islands  Constitutional Convention.

While Committee Rule 4(g) limits opening statements to the Chair and the Ranking Minority Member, in a few minutes, I intend to also recognize my good friend, the gentlewoman from  the Virgin Islands, Dr. Christensen, to make a few opening  remarks and to introduce her constituents who are here with us  today. If any other Members have statements, they can be included in the hearing record under unanimous consent. I now will recognize myself for an opening statement.

STATEMENT OF HON. MADELEINE Z. BORDALLO, A DELEGATE IN CONGRESS FROM THE TERRITORY OF GUAM

The United States Virgin Islands and the congressional district I have the privilege to represent here in Congress, the Territory of Guam, are the only two United States jurisdictions that are not governed by a constitution  written by their people. Both areas are, in fact, governed by an organic act that was written by Congress.

To more firmly enable both jurisdictions to write their own constitutions, Congress in 1976 enacted legislation, sponsored by the former Virgin Islands and Guam delegates, to authorize  the people of the Virgin Islands and Guam to convene  constitutional conventions and write their own local  constitutions. The law, which was U.S. Public Law 94-584, sets out a process for Federal review of any proposed constitution, including 60-day periods for both Presidential and congressional review, respectively.

The Virgin Islands has on four previous occasions written constitutions pursuant to local law and two in accordance with the U.S. Public Law 94-584. The first attempt was in 1964. It was not approved in its entirety by Congress, and the second in 1971 was never submitted to Congress because of the low level of voter support when it was submitted to the people of the  territory for their approval. 

The third draft constitution was submitted to Congress in 1978, but was rejected by the voters when it was returned to them without having been amended. A fourth proposed constitution was drafted in 1980. Congress approved that document via a joint resolution in 1981, but it too was rejected by the voters, which brings us to the current document before us today.

The law that authorized the writing of a constitution by the Virgin Islands and Guam empowers Congress with the ability to amend or clarify the said constitution should we see fit.  Congress would also allow a proposed constitution to be returned to the residents of either territory for approval by the voters without changing the document in any way, as was done by the 96th Congress with a third proposed Virgin Islands constitution.

In submitting the fifth proposed constitution to Congress, President Obama included for our consideration a legal memorandum from the United States Department of Justice which  outlines at least eight areas in the proposed constitution that  the Department believes should either be removed from the  constitution or modified. We understand the witness for the Department of Justice today will elaborate on this further.

The principal question confronting this committee and Congress is whether or not we will be able to modify or amend the draft constitution to conform to the recommendations of the Justice Department. In examining this question, we are mindful that the law authorizing this process for the drafting and the adoption of such constitution requires Congress to act within 60 days.     Regrettably, this window of time does not reflect the current realities as to the pace at which legislation of this nature would typically advance through the Congress, particularly with respect to recent experiences associated with bills pending in the other body, the U.S. Senate.     Another consideration we are called to take into account is the amount that any congressional modification would have on the views of the voters in the Virgin Islands, whose constitution this is, and who will ultimately be called upon to approve or disapprove of it via referendum. In considering these circumstances, I am mindful of the words shared by the former Chairman of the Senate Energy and Natural Resources Committee, The Honorable J. Bennett Johnston of Louisiana, who when speaking at the hearing to approve the fourth proposed Virgin Islands constitution, said rather simply and  straightforwardly, and I quote, ``This constitution should be  the product of the people of the Virgin Islands, and I believe  that we should defer to them,''

His words are as relevant today with respect to the fifth constitution before us as they were with respect to the fourth constitution before Congress in 1981. Both documents have risen under the same process, so we must therefore take care not to substitute our judgment for those of the people who were elected to draft the constitution on behalf of the people who elected them, less the principle of self-government be trampled upon.

As we hear from our witnesses today, including from a number of whom helped draft the constitution, it is my hope that a consensus will emerge on the best way forward, given the time constraints we are under and the limitations in getting legislation here in Congress duly acted upon without delay by the other body.

I know that the people of the Virgin Islands want to have their own constitution, as evidenced by the decades worth of attempts that they have made to secure one. While this constitution may not be a perfect document, and this committee will go on record acknowledging its legal imperfections, it nonetheless is a product of a significant amount of hard work and, as such, deserves our most serious and careful attention, as well as that of the people of the Virgin Islands, who will ultimately be called upon to approve or disapprove it, irrespective of whether Congress takes any action on it or not.

 And finally, I want to thank the Governor and the other leaders who have submitted testimonies for our consideration. I also want to extend my sincerest welcome to those who have traveled from the Virgin Islands to be with us today. And I also acknowledge the steadfast leadership provided by your Member of Congress, our good friend, the distinguished gentlewoman, Dr. Donna Christensen. She is an ardent guardian of self-government and seeks at every opportunity to protect and advance the fundamental political rights of the people of the territories.

This committee continues to value her leadership on these issues, and I know we will deliberate on this particular matter with appropriate deference to her insight. And so with that, we look forward to the testimonies.

[The prepared statement of Chairwoman Bordallo follows:]       Statement of The Honorable Madeleine Z. Bordallo, Chairwoman,

Subcommittee on Insular Affairs, Oceans and Wildlife  The Subcommittee is meeting today to hear testimony on the proposed constitution of the United States Virgin Islands submitted by the 5th Virgin Islands Constitutional Commission.

The United States Virgin Islands, like the Congressional District I have the privilege to represent here in Congress--Guam--are the only two U.S. jurisdictions that are not governed by a Constitution written by the people. Both areas are governed by an Organic Act that was written by Congress.

To more firmly enable both jurisdictions to write their own Constitutions, Congress, in 1976, enacted legislation sponsored by former Virgin Islands Delegate, Congressman Ron de Lugo, and one of my predecessors, the late Congressman Antonio B. Won Pat, to authorize the people of the Virgin Islands and Guam to convene constitutional conventions and write their own local constitutions. The law, U.S. Public Law 94-528, sets out a process for federal review of any proposed constitution, including 60day periods for both Presidential and Congressional review, respectively.

 The Virgin Islands has on four previous occasions, written constitutions, two pursuant to local law and two in accordance with U.S. Public Law 94-528. The first attempt, in 1964 was not approved in its entirety by Congress and the second in 1971 was never submitted to Congress because of the low level of voter support when it was submitted to the people of the territory for their approval. The third draft constitution was submitted to Congress in 1978 but was rejected by the voters when it was returned to them without having been amended.  A fourth proposed constitution was drafted in 1980. Congress approved that document via a joint resolution in 1981 but it too was rejected by the voters: which brings us to the current document before us today.

 The law that authorized the writing of a Constitution by the Virgin Islands and Guam empowers Congress with the ability to amend or clarify the said constitutions should we see fit. Congress could also allow a proposed constitution to be returned to the residents of either territory for approval by the voters without changing the document in  any way as was done by the 96th Congress with the third proposed Virgin  Islands constitution.

 In submitting the fifth proposed constitution to Congress, President Obama included for our consideration a legal memorandum from the United States Department of Justice which outlines at least eight  areas in the proposed constitution that the Department believes should  either be removed from the constitution or modified. We suspect the witness for the Department of Justice will elaborate on this further.

 The principal question confronting this Committee and Congress is whether or not we will be able to modify or amend the draft constitution to conform to the recommendations of the Justice Department. In examining this question we are mindful that the law authorizing this process for drafting and adoption of such Constitution requires Congress to act within 60 days. Regrettably, this window of time does not reflect the current realities as to the pace at which legislation of this nature would typically advance through Congress, particularly with respect to recent experiences associated with bills pending in the other body.

 Another consideration we are called to take into account is the impact any Congressional modification would have on the view of the voters in the Virgin Islands whose Constitution this is, and who will ultimately be called upon to approve or disapprove of it via referendum. In considering these circumstances, I am mindful of the words shared by the former Chairman of the Senate Energy and Natural Resources Committee, The Honorable J. Bennett Johnston of Louisiana, who, when speaking at the hearing to approve the fourth proposed Virgin Islands constitution, said rather simply and straightforwardly--quote-- ``This constitution should be the product of the people of the Virgin Islands and I believe that we should defer to them.'' End quote.

His words are as relevant today with respect to the fifth constitution before us as they were with respect to the fourth constitution before Congress in 1981; both have risen under the same process. We must, therefore, take care not to substitute our judgment for those of the people who were elected to draft the constitution on behalf of the people who elected them, lest the principle of self- government be trampled upon.

As we hear from our witnesses today, including a number of whom helped draft the constitution, it is my hope that a consensus will emerge as to the best way forward given the time constraints we are under and the limitations in getting legislation duly acted upon  without delay by the other body.

 I know that the people of the Virgin Islands want to have their own constitution as evidenced by the decades worth of attempts they have made to secure one. While this constitution may not be a perfect document, and this committee will go on record acknowledging its legal imperfections, it nonetheless is a product of a significant amount of hard work and as such deserves our most serious, careful attention as well as that of the people of the Virgin Islands who will ultimately be called upon to approve or disapprove it irrespective of whether  Congress takes any action on it or not.

 Finally, I want to thank the Governor and other leaders who have submitted testimony for our consideration. I also want to extend my sincerest welcome to those that have traveled from the Virgin Islands to be with us today. I also want to acknowledge the steadfast leadership provided by your Member of Congress, our good friend, the distinguished gentlewoman, Dr. Donna Christensen. She is an ardent guardian of self-government and seeks at every opportunity to protect and advance the fundamental, political rights of the people of the territories. This Committee will continue to value her leadership on these issues, and I know will deliberate on this particular matter with  appropriate deference to her insight. With that, I look forward to the  testimonies. 

Ms. Bordallo: I would like at this time now to recognize the Representative from the Virgin Islands, The Honorable Donna  Christensen.

STATEMENT OF HON. DONNA CHRISTENSEN, A DELEGATE IN CONGRESS  FROM THE TERRITORY OF THE VIRGIN ISLANDS

Mrs. Christensen: Thank you, Madame Chair, and thank you  for holding this hearing on the proposed constitution for the  United States Virgin Islands. I just regret that we were unable to hold this hearing in the territory as first planned. It is my pleasure also to welcome the Governor of the U.S. Virgin Islands, The Honorable John P. deJongh, Jr., in his first appearance before our Subcommittee, as well as the Minority Leader of the 28th Legislature of the Virgin Islands, Senator Usie Richards, and the President of the Fifth Constitutional Convention, Gerard Luz James II, and all of the other delegates  of the Fifth Constitution who are here today, and their staff,  to discuss the draft document before Congress.

 Welcome also to Deputy Assistant Attorney General Jonathan Cedarbaum, and all of the Virgin Islanders who have joined us  here in the audience to witness the hearing, as well as those who are listening on the web, television, or radio in the Virgin Islands or elsewhere.

 It has been almost 30 years since the people of the Virgin Islands last embarked upon the process of drafting a constitution to oversee the governance of our lives as a proud people of the United States Virgin Islands. As we are here to consider this proposed Fifth Constitution, many of the issues that were of concern 30 years ago are still of concern today.

In particular, some sores that have been festering for all of those years have been opened once again, and so I am not, and none of us should be, surprised that this opportunity became one to attempt to address historic injustices and inequities, valued ancestry, culture, and tradition, and some of the yet unresolved issues surrounding political status.

 One may legitimately argue whether they properly belonged in this convention, where a constitution was being drafted for an incorporated territory. But when a people embark on an effort of self-determination at any level, some of these issues will arise. I acknowledge and appreciate that as elected delegates to the constitution, each has worked hard to reflect the wishes of the Virgin Islands electorate. And while there may be differences and disagreements, I feel their goal has always been to craft a document that reflects the collective  views of the majority of the people of the Virgin Islands.

On the other hand, though, I am conflicted because I do fundamentally believe that we owe the people of the Virgin Islands a document that is constitutionally sound within the context of our current relationship with the United States of America, as dictated by the authorizing legislation. The Justice Department representative will give its review findings in this regard.

 But I also respect the process by which all of the people of the Virgin Islands who are eligible had the opportunity to vote and elect 30 individuals who they vested with the responsibility of creating a document that would reflect their wishes, positions, hopes, and aspirations. And as happens here, the vote of the majority determines the outcome.

The Subcommittee and I look forward to hearing your thoughts, reflections, and positions on the process and the provisions each of you deem important to the document. This Congress will give every consideration to what is presented to us here today and to the written testimony that will be submitted. It is my hope that this fifth attempt at drafting a constitution for the United States Virgin Islands, amended or not by us, or amended or not by a reconvened convention, that it will pass muster with the people of the Virgin Islands, and  that we will have our own constitution at long last.

 At the point at which we adopt this constitution, or not, it seems clear to me that we can and must then revisit the issue of status. This process has shown the benefits and limitations of being an incorporated territory. Surely it can be the impetus and the basis for us to move forward with that more complex discussion. I am grateful to our Chairwoman for her legislation, which seeks to provide funding to help us with that process.

Again, I want to welcome everyone who is here to testify on this issue of great importance to the people of the Virgin  Islands. I look forward to your testimony. And, Madame Chair, at this time I would like to ask unanimous consent to enter statements from Caroline Brown and Gaylord Sprauve to be entered into the record.

Ms. Bordallo: No objection, so ordered.     Mrs. Christensen. Thank you.

 [NOTE: The statements submitted for the record have been retained in the Committee's official files.]    

Ms. Bordallo: I thank the gentlelady from the Virgin Islands for her statement. And now I would like to recognize the acting Ranking Member from Alaska, the gentleman Mr. Young.

STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ALASKA

Mr. Young: Thank you, Madame Chairman, and thank you for  having these hearings. I want to submit for the record my statement. I am here to listen to the witnesses and ask questions down the line. With that, Madame Chairman, I will yield back the balance of my time.

Ms. Bordallo: No objection, so ordered to enter your  statement.

 [The prepared statement of Mr. Young follows:]   

Statement of The Honorable Don Young, a Representative in Congress from the State of Alaska

Madam Chairwoman, good afternoon. Today's hearing topic is the draft U.S. Virgin Islands constitution. This is the 5th draft constitution developed by a U.S. Virgin Islands Constitutional Convention and many of the witnesses here today were members of this Convention and can give us some insight into the development of the constitution.

The U.S. Constitution, specifically, the Territories Clause, gives Congress the authority to govern territories. However, this does not mean that this authority should remain in perpetuity. Congress should assist the territories in developing and achieving to the greatest extent possible, as adopted and agreed to by their populace, territorial self-governance.

 Congress has passed an Organic Act and other laws for the U.S. Virgin Islands, which have started the process of greater self- governance in the territory. However, these laws have been drafted by Congress and can only be changed by Congress. A constitution, if adopted by the U.S. Virgin Islands electorate, would allow the  territory greater self-governance through its ability to amend its  constitution based on territorial needs, without Congressional action.

However, there are concerns with the submitted draft constitution. There are questions as to whether the document sufficiently recognizes U.S. sovereignty and the supremacy of certain provisions of the Constitution, treaties, and laws of the United States. In addition, there are a number of sections in the constitution that raise equal  protection concerns.

 Congress, under Public Law 94-584, gave itself 60 legislative days to amend, modify or approve a constitution developed by U.S. Virgin Islands. If we do not act within this time frame, the constitution is deemed to be approved. I want to stress, that if Congress does not act, it should not be interpreted as an endorsement of any of the provisions that have raised constitutional concerns. If the U.S. Virgin Islands electorate votes to adopt the constitution, the concerns raised by the  Justice Department will need to be resolved through federal  legislation.     Thank you, Madam Chairwoman.

Ms. Bordallo: And I would just like to introduce the gentleman from Puerto Rico, Mr. Pedro Pierluisi. There will be questions later, and also Mr. Kilili Sablan from the CNMI. Both have joined us.

And now we begin with our first group of witnesses, Mr. Jonathan G. Cedarbaum, Deputy Assistant Attorney General, Office of Legal Counsel, United States Department of Justice.  And the next witness is The Honorable John P. deJongh, Governor of the United States Virgin Islands. Welcome, Governor. And The Honorable Usie R. Richards, the Minority Leader of the 28th Legislature of the Virgin Islands. I welcome you as well. And The Honorable Gerard Luz James II, the President of the Fifth Constitutional Convention. And coincidentally, I would note that Mr. James and I served as Lieutenant Governors together in the 1990s. And welcome to you, Lieutenant Governor.

I want to thank you all and to remind you that there is a  red timing light on the table, which will indicate when your time is concluded. And we would appreciate your cooperation in complying with the limits that have been set, as we have many  witnesses to hear from today. But be assured that your full written statement will be submitted for the hearing record.

I would like to mention to the Governors and the elected officials of the Virgin Islands, if you go a few minutes over the five minutes, we will not mind that. I was once a Lieutenant Governor.

Mr. Cedarbaum, we will begin with your testimony. Thank you  for your presence today on behalf of the Administration, and  you now may begin.

STATEMENT OF JONATHAN G. CEDARBAUM, DEPUTY ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE

Mr. Cedarbaum: Thank you, Chairwoman Bordallo, acting Ranking Member Young, and other members of the Subcommittee. My name is Jonathan Cedarbaum. I am a deputy assistant attorney general in the office of legal counsel at the Department of Justice. I am honored to appear before you this afternoon to discuss the proposed constitution for the U.S. Virgin Islands, which was recently drafted by a constitutional convention in  the Virgin Islands.

As you know, and as the Chairwoman indicated, Public Law 94-584 establishes a process by which the people of the U.S. Virgin Islands can adopt a constitution for their own local self-government. In accord with that process, the Fifth Constitutional Convention of the U.S. Virgin Islands drafted a proposed constitution last year and submitted it to the Governor of the Virgin Islands. The Governor forwarded the proposed constitution to President Obama. President Obama then transmitted the proposed constitution to Congress with his comments.

As President Obama stated in his letter of transmittal, the electorate of the Virgin Islands and its governmental representatives are to be commended for their continuing commitment to increasing self-government and the rule of law.  As the President also indicated in his letter of transmittal, in carrying out his responsibilities under Public Law 94-584, he asked the Department of Justice, in consultation with the Department of the Interior, to write its views about the proposed constitution.

 The Department provided those views in the form of a memorandum from the Assistant Attorney General for Legislative Affairs to the Office of Management and Budget, and the President attached the copy of the Department's memorandum to his letter of transmittal.

 As the President noted, and as the Chairwoman noted, the Department of Justice's memorandum analyzed several features of the proposed constitution, including, first, the absence of an express recognition of United States sovereignty and the supremacy of Federal law; second, provisions for a special  election on the USVI's territorial status; third, provisions  conferring legal advantages on certain groups defined by place  and timing of birth, timing of residency, or ancestry; fourth,  residence requirements for certain offices; fifth, provisions  guaranteeing legislative representation of certain geographic  areas; sixth, provisions addressing territorial waters and  marine resources; seventh, imprecise language in certain  provisions of the proposed constitution's bill of rights;  eighth, the possible need to repeal certain Federal laws if the  proposed USVI constitution were adopted; and ninth, the effect  of congressional action or inaction on the proposed  constitution.

I would be happy to address any of these issues with you this afternoon. I should emphasize that our review was restricted to legal issues in light of the requirements of Public Law 94-548. The Department's memorandum does not address any questions of policy. Because I trust you have had some opportunity to review the Department's memorandum in advance of today's hearing, I will not attempt to summarize it in this opening statement. I would just briefly highlight three issues to which the Department suggested that changes in the proposed constitution might be considered.

First, several provisions of the proposed constitution give special advantages to native Virgin Islanders and ancestral native Virgin Islanders. These provisions raise serious concerns under the Equal Protection Guarantee of the U.S.  Constitution, which has been made applicable to the Virgin Islands by the revised Organic Act. Because we find it difficult to discern a legitimate governmental purpose that  would be rationally advanced by these provisions, we recommend  that they be removed.

Second, the proposed constitution imposes substantial residence requirements on a number of USVI offices. In particular, it requires the Governor and Lieutenant Governor, judges and justices of the USVI Supreme Court and lower court, and the attorney general, inspector general, and members of the  Political Status Advisory Commission to have been USVI  residents for periods ranging from 5 to 15 years. These requirements, particularly those requiring more than five years raise potential equal protection concerns. Thus we would suggest that consideration be given to shortening their duration.

Third, Article 12, Section 2 of the proposed constitution concerning preservation of natural resources, makes a number of assertions about USVI sovereignty or control over waters and submerged lands. The intended meaning and effect of this provision are not entirely clear, but to the extent that its reference to a claim of sovereignty over coastal waters is intended to derogate from the sovereignty of the United States over those waters, it is inconsistent with Federal law and should be removed or modified.

In addition, by statute, the United States has, subject to certain exceptions, conveyed to the USVI its right, title, and interest in submerged lands, and mineral rights in those submerged lands out to three miles. Federal law also reserves to the United States exclusive management rights over fisheries within the exclusive economic zone. The proposed constitution must be made consistent with these Federal statutory mandates.

 Finally, while the last sentence of Article 12, Section 2 acknowledges that the rights it addresses are alienable, we recommend modifying that language to make clearer that these matters are subject to Congress's plenary authority.     I would like to emphasize that my statement has focused on three aspects of the proposed constitution that we believe Congress should consider revising because we believe that discussing those provisions would be most helpful to the Subcommittee as it considers what actions to take in response to the transmittal of the proposed constitution.     Let me close by again echoing President Obama's letter of transmittal and commending the electorate of the Virgin Islands and its governmental representatives in their continuing commitment to increasing self-government and the rule of law. I would be happy to address any questions you may have, and I would be grateful if the Department's memorandum could be inserted in the record of this hearing immediately following  this statement.

Ms. Bordallo: No objection to that. So ordered.

[The prepared statement of Mr. Cedarbaum follows:]  Statement of Jonathan G. Cedarbaum, Deputy Assistant Attorney General, U.S. Department of Justice     

Chairwoman Bordallo, Ranking Member Brown, Members of the  Subcommittee:

 My name is Jonathan Cedarbaum. I am a Deputy Assistant Attorney General in the Office of Legal Counsel at the Department of Justice. I am honored to appear before you this afternoon to discuss the proposed constitution for the U.S. Virgin Islands (``USVI'') recently drafted by a constitutional convention in the Virgin Islands.

 As you know, Public Law 94-584 establishes a process by which the people of the U.S. Virgin Islands can adopt a constitution for their local self-government. In accord with that process, the Fifth Constitutional Convention of the U.S. Virgin Islands drafted a proposed constitution last year and submitted it to the Governor of the Virgin  Islands. The Governor forwarded the proposed constitution to President Obama. President Obama then transmitted the draft. Constitution to the Congress with his comments. As the President indicated in his letter of transmittal, in carrying out his responsibilities under Public Law 94- 584 he asked the Department of Justice, in consultation with the Department of the Interior, to provide its views of the proposed constitution. The Department provided those views in the form of a memorandum from the Assistant Attorney General for Legislative Affairs to the Office of Management and Budget, and the President attached a  copy of the Department's memorandum to his letter of transmittal.

As the President also noted, the Department of Justice's memorandum analyzed several features of the proposed constitution, including: (1)  the absence of an express recognition of United States sovereignty and  the supremacy of federal law; (2) provisions for a special election on  the USVI's territorial status; (3) provisions conferring legal  advantages on certain groups defined by place and timing of birth,  timing of residency, or ancestry; (4) residence requirements for  certain offices; (5) provisions guaranteeing legislative representation  of certain geographic areas; (6) provisions addressing territorial  waters and marine resources; (7) imprecise language in certain provisions of the proposed constitution's bill of rights; (8) the  possible need to repeal certain federal laws if the proposed USVI  constitution is adopted; and (9) the effect of congressional action or  inaction on the proposed constitution. I would be happy to address any of these issues with you this afternoon. I should emphasize that our review was limited to a review of legal issues in light of the requirements established by Public Law 94-548. The Department's memorandum does not address any questions of policy.

Because I trust you have had some opportunity to review the Department's memorandum in advance of today's hearing, I will not  attempt to summarize in this opening statement the analysis it provides  of all of these issues. I would just briefly discuss the three issues as to which the Department suggested that changes in the proposed constitution should be considered. A.  Provisions Concerning ``Native Virgin Islanders'' and ``Ancestral Native Virgin Islanders''

First, several provisions of the proposed constitution give special advantages to ``Native Virgin Islanders'' and ``Ancestral Native Virgin Islanders.'' These provisions raise serious concerns under the equal protection guarantee of the U.S. Constitution, which has been made applicable to the USVI by the Revised Organic Act, see 48 U.S.C.  Sec. 1561 (2006). Because we find it difficult to discern a legitimate governmental purpose that would be rationally advanced by these provisions conferring legal advantages on certain groups defined by  place and timing of birth, timing of residency, or ancestry, we recommend that these provisions be removed from the proposed constitution.     In Article III, section 2, the proposed constitution would define  ``Native Virgin Islander'' to mean (1) ``a person born in the Virgin Islands after June 28, 1932,'' the enactment date of a statute  generally extending United States citizenship to USVI natives residing  in United States territory as of that date who were not citizens or  subjects of any foreign country, see Act of June 28, 1932, ch. 283, 47  Stat. 336 (now codified at 8 U.S.C. 1406(a)(4) (2006)); and (2) a  ``descendant[] of a person born in the Virgin Islands after June 28,  1932.'' ``Ancestral Native Virgin Islander'' would be defined as: (1)  ``a person born or domiciled in the Virgin Islands prior to and  including June 28, 1932 and not a citizen of a foreign country pursuant  to 8 U.S.C. [Sec. ] 1406,'' the statute governing United States  citizenship of USVI residents and natives; (2) ``descendants'' of such  individuals; and (3) ``descendants of an Ancestral Native Virgin  Islander residing outside of the U.S., its territories and possessions  between January 17, 1917 and June 28, 1932, not subject to the  jurisdiction of the U.S. and who are not a citizens [sic] or a subjects  [sic] of any foreign country.'' Proposed Const, art. III, Sec. 1.

---------------------------------------------------------------------------    

\1}\The third prong of this definition appears circular insofar as  it defines ``Ancestral Native Virgin Islander'' in terms of descendants  of ``Ancestral Native Virgin Islanders'' (a category of people already  encompassed by the definition's second prong), and it is also  grammatically ambiguous with respect to whether the qualifying terms  modify the ``descendants'' or the ``Ancestral Native Virgin Islander''  from whom they are descended.

We think it clear that these classifications could not be  considered tribal within the meaning of the Indian Commerce Clause,  U.S. Const. art. I, Sec. 8, el. 3, that is, as falling within the established body of law defining the special relationship between  aboriginal peoples of the United States and the Federal Government. In any event, that Clause empowers Congress, not the government of the  Virgin Islands.

---------------------------------------------------------------------------

1.Property Tax Exemption for Ancestral Native Virgin Islanders

Under the proposed constitution, the USVI legislature would be  authorized to impose real property taxes, but ``[n]o Real Property tax  shall be assessed on the primary residence or undeveloped land of an  Ancestral Native Virgin Islander.'' Proposed Const. art. XI, Sec. 5(g).  The property tax exemption for Ancestral Native Virgin Islanders raises  serious equal protection concerns. The Equal Protection Clause of the  Fourteenth Amendment, which has been extended to the USVI by statute,  see 48 U.S.C. Sec. 1561 (2006), 2 generally requires only  that legislative classifications be rationally related to a legitimate  governmental purpose. See, e.g., Heller v. Doe, 509 U.S. 312, 319-20  (1993). But the proposed constitution does not identify a legitimate governmental purpose that the real property tax exemption for Ancestral  Native Virgin Islanders would further, and it is difficult for us to  discern a legitimate governmental purpose that the exemption could be  said to further.

---------------------------------------------------------------------------    

\2}\See also, e.g., Government of the Virgin Islands v. Davis, 561  F.3d 159, 163-64 n.3 (3d. Cir. 2009) (recognizing applicability of the  Fifth and Fourteenth Amendment Due Process Clauses to the USVI under  the Revised Organic Act); Hendrickson v. Reg 0 Co., 657 F.2d 9, 13 n.2  (3d Cir. 1981) (same); Moolenaar v. Todman, 433 F.2d 359, 359 (3d Cir.  1970) (per curiam) (requiring adherence to ``the constitutional  requirements of equal protection of the law'' in the USVI).

------------------------------------------------------    

The definition of Ancestral Native Virgin Islander appears to combine two sub-classes: (i) individuals born or domiciled in the USVI  before a certain date and (ii) descendants of such persons. The first sub-class may include many long-time residents of the USVI, but to the  extent the real property tax exemption is designed to benefit such  long-time residents it raises serious equal protection concerns. The Supreme Court has held that statutes limiting benefits, including property tax exemptions, to citizens residing in a jurisdiction before  a specified date are not rationally related to any legitimate  governmental purpose. For example, in Hooper v. Bernalillo County  Assessor, 472 U.S. 612 (1985), the Court held that a New Mexico  property tax exemption applicable only to Vietnam War veterans who  resided in the state before a certain date violated equal protection by  ``creat[ing] two tiers of resident Vietnam veterans, identifying  resident veterans who settled in the State after May 8, 1976, as in a  sense `second-class citizens. ' Id. at 623. Explaining that ``singling out previous residents for the tax exemption[] [and] reward[ing] only  those citizens for their `past contributions' toward our Nation's  military effort in Vietnam'' was ``not a legitimate state purpose,''  the Court held that the tax exemption violated the Equal Protection  Clause by ``creat[ing] fixed, permanent  distinctions...between...classes of concededly bona tide residents. '  id. at 622-23 (quoting Zobel v. Williams, 457 U.S. 55, 59 (1982)).

---------------------------------------------------------------------------    

\3}\See also, e.g., Att'y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898,  909, 911 (1986) (plurality opinion) (applying heightened scrutiny to  invalidate civil service employment preference limited to veterans who  lived 'in the state when they entered the armed forces); id. at 913  (Burger, C.J., concurring in judgment) (same under rational basis  review); Bunyan v. Camacho, 770 F.2d 773, 776 (9th Cir. 1985)  (invalidating law enacted by Guam legislature awarding certain  retirement credits for higher education degrees to Guam civil servants  only if they resided in Guam before pursuing the degree).

---------------------------------------------------------------------------    

Moreover, even as to this sub-class, the real property tax exemption proposed here appears to be even less constitutionally justifiable than benefits for long-time residents. In Nordlinger v.  Hahn, 505 U.S. 1 (1992), the Supreme Court upheld a California real property valuation system that disfavored newer purchasers (though not necessarily newer or longer-term residents), and the Court recognized as legitimate two governmental interests for such a system: ``local neighborhood preservation, continuity, and stability,'' id. at 12, and  honoring the reliance interests of long-time property owners, id. at  12-13. To the extent that those interests might be offered in defense of tax benefits for long-time residents or property owners, they cannot justify the real property tax exemption for Ancestral Native Virgin Islanders. Neither of those interests appears to be rationally furthered by the first sub-class included in the proposed property tax exemption for Ancestral Native Virgin Islanders because membership in that sub-class is defined neither by length of residence nor even by length of property ownership in the USVI, but simply by having been born or having lived in the USVI many years ago. Thus, for example, an individual born in the USVI on June 28, 1932, who left the Islands the following year and who moved back to the Islands and bought a home there 50 years later (or who simply bought an undeveloped piece of land there 50 years later) would be entitled to immunity from real property  taxes even though an individual who had spent his or her whole life in  the USVI and had owned the same home there for the past 50 years, but  who had been born there of parents who had arrived in the USVI as  immigrants on June 29, 1932, would not be so shielded. How a system permitting this kind of discrimination could be said to further neighborhood stability or reliance interests of long-time property owners is unclear.

The second sub-class benefitted by the real property exemption for Ancestral Native Virgin Islanders also seems difficult to justify as furthering a legitimate governmental interest, for the second sub-class is defined simply by parentage or ancestry. We need not delve into whether this use of ``ancestry'' in classifying citizens would be deemed ``suspect'' and thus subject to heightened scrutiny under the Fourteenth Amendment. See, e.g., Mass. Bd. of Retirement v. Murgia, 427  U.S. 307, 312 & n.4 (1976) (per curiam) (identifying alienage, race,  and ancestry as classifications subject to strict scrutiny). Again, it is unclear to us what legitimate governmental purpose would support  favoring so starkly the descendants of individuals born or resident  long ago in the USVI regardless of the descendants' own connections (or  lack thereof) to the Islands.

2.  Provisions on Voting and Office-Holding Favoring Native Virgin Islanders and Ancestral Native Virgin Islanders     Provisions in the proposed constitution that limit certain offices and the right to vote in certain elections to Native Virgin Islanders and Ancestral Native Virgin Islanders or that guarantee members of those groups the right to participate in certain elections present similar issues. Under the proposed constitution, the positions of Governor and Lieutenant Governor would be open only to members these groups, see Proposed Const. art. VI, Sec. 3(d), as would service on the Political Status Advisory Commission, an eleven-member body composed of  four appointed members and seven elected members that would promote  awareness of the USVI's political status options and advise the  Governor and legislature on ``methods to achieve a full measure of  self-government.'' Id. art. XVII, Sec. Sec. 1(b), 3. The special election on ``status and federal relations options'' provided for under  the proposed constitution would be ``reserved for vote by Ancestral  Native and Native Virgin Islanders only, whether residing within or  outside the territory.'' Id. art. XVII, Sec. 2. And the proposed constitution would guarantee that ``Ancestral and Native Virgin  Islanders, including those who reside outside of the Virgin Islands or  in the military, shall have the opportunity to vote on'' amendments to  the USVI constitution. Id art. XVIII, Sec. 7.

---------------------------------------------------------------------------

 \4}\The right to vote on such amendments does not appear to be limited to these groups, as the same provision requires that amendments  be submitted ``to the electors of the Virgin Islands.'' Proposed Const.  art. XVIII, Sec. 7. Although the term ``electors of the Virgin Islands'' is undefined, the proposed constitution elsewhere provides  that ``[e]very citizen of the United States and the Virgin Islands  eighteen (18) years of age or older and registered to vote in the  Virgin Islands shall have the right to vote.'' Id. art. IV, Sec. 1. The separate provisions establishing special voting rights and opportunities for Ancestral Native Virgin Islanders and Native Virgin  Islanders suggest that the term ``electors of the Virgin Islands''  refers to the broader group of eligible voters.

---------------------------------------------------------------------------

The provisions concerning eligibility to vote in certain elections raise equal protection concerns. To the extent one might attempt to justify the limitation on the electorate for the special election on  status options as akin to a durational residence requirement, we  believe it is too restrictive to be so justified. Although the Supreme Court has upheld a very brief residential limitation on eligibility to  vote in one instance based on a state's legitimate interest in  ``prepar[ing] adequate voter records and protect[ing] its electoral  processes from possible frauds,'' Marston v. Lewis, 410 U.S. 679, 680  (1973) (per curiam) (upholding 50-day durational residence  requirement), it has held that even a requirement of one year's  residence for voting, as opposed to office-holding, violates  constitutional equal protection guarantees. See Dunn v. Blumstein, 405  U.S. 330, 360 (1972) (invalidating state's requirement that voters have  resided in the state for one year and the county for three months).  Moreover, the classifications here are not based on length of residence, and their effects appear potentially arbitrary. As I discussed earlier, the categories of Ancestral Native Virgin Islanders and Native Virgin Islanders are based simply on place and timing of birth, the fact of having resided in the USVI before a certain date regardless of for how brief a time, or ancestry, regardless of the individual's own connection to the USVI. Thus, they could prohibit, for example, a foreign-born but life-long resident of the USVI from voting on political status, but would permit any qualifying ancestral descendant, including those who have never lived in the USVI, to do so.

---------------------------------------------------------------------------    

\5}\5 Cf. Soto-Lopez, 476 U.S. at 915 (Burger, C.J., concurring in judgment) (discussing ``irrationality'' of law that ``would grant a civil service hiring preference to a serviceman entering the military while a resident of [the state] even if he was a resident only for a  day,'' but that would deny the preference to a veteran ``who was a  resident of [the state] for over 10 years before applying for a civil  service position''); Dunn, 405 U.S. at 360 (concluding that the state  interest in ``knowledgeable'' voters did not justify a durational  residence requirement for voting because ``there is simply too  attenuated a relationship between the state interest in an informed  electorate and the fixed requirement that voters must have been  residents in the State for a year and the county for three months'');  Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 632 (1969)  (rejecting, under strict scrutiny, restrictions on franchise for school  board elections because ``[t]he classifications in [the statute] permit  inclusion of many persons who have, at best, a remote and indirect  interest in school affairs and, on the other hand, exclude others who  have a distinct and direct interest in the school meeting decisions'').

---------------------------------------------------------------------------    

The proposed constitution's guarantee that Native Virgin Islanders and Ancestral Native Virgin Islanders ``resid[ing] outside of the  Virgin Islands'' may vote on amendments to the USVI constitution also  raises equal protection concerns. Proposed Const. art. XVIII, Sec. 7.  To uphold inclusion of non-resident voters in local government elections against equal protection challenges, courts have required a  showing that the non-resident voters have a ``substantial interest'' in  the elections in question. 6 Because many non-resident Ancestral Native Virgin Islanders and Native Virgin Islanders may have  no connection to the Islands apart from ancestry, it is unclear whether  their inclusion in the electorate for USVI constitutional amendments  would satisfy this standard.

---------------------------------------------------------------------------    

\6}\See, e.g., May v. Town of Mountain Village, 132 F.3d 576, 583  (10th Cir. 1997) (upholding inclusion of nonresident property owners in  town electorate because such voters ``have a substantial interest in  township elections''); Board of County Commissioners of Shelby County,  Tenn. v. Burson, 121 F.3d 244, 248-51 (6th Cir. 1997) (deeming  participation of city voters in county school board elections  irrational and thus impermissible under Fourteenth Amendment where city  voters had their own independent school board and lacked a substantial  interest in county school board elections); Hogencamp v. Lee County Bd.  of Educ., 722 F.2d 720, 722 (11th Cir. 1984) (deeming city taxpayers'  contribution of 2.74% of county school board's budget ``insufficient by  itself to create a substantial interest in the city residents''  justifying their participation in county school board elections).

---------------------------------------------------------------------------    

Finally, although the residential duration requirements for Governor and Lieutenant Governor and members of the Political Status Advisory Commission would prevent non-resident individuals who qualify as Native Virgin Islanders or Ancestral Native Virgin Islanders from  serving in those offices, it is unclear what legitimate governmental  purpose would be advanced by narrowing the subset of longtime residents  who could hold those offices to Native Virgin Islanders and Ancestral  Native Virgin Islanders.

In the absence of any identified legitimate governmental interest to support such provisions concerning voting and office-holding based on place of birth, residence many decades ago, or ancestry, we would  again recommend that these provisions be removed from the proposed  constitution. 7

---------------------------------------------------------------------------    

\7}\Because we conclude that the restrictions on voting present  clear equal protection concerns under the Fourteenth Amendment, we need  not consider whether they may also violate the Fifteenth Amendment's  prohibition on denial or abridgement of the right to vote ``on account  of race, color, or previous condition of servitude.'' U.S. Const.  amend. XV; see also 48 U.S.C. Sec. 1561 (extending Fifteenth Amendment  to USVI).

 ---------------------------------------------------------------------------

B. Residence Requirements for Office-Holding     Second, the proposed constitution imposes substantial residence  requirements on a number of USVI offices. In particular, the Governor  and Lieutenant Governor would be required to have been  ``dorniciliar[ies]'' of the USVI for at least fifteen years, ten of  which ``must immediately precede the date of filing for office,''  Proposed Const. art. VI, Sec. 3(a); judges and justices of the USVI  Supreme Court and lower court to be established under the proposed  constitution would be required to have been ``domiciled'' in the USVI  for at least ten years ``immediately preceding'' the judge or justice's  appointment, id. art. VII, Sec. 5(b); the Attorney General and  Inspector General would need to have resided in the USVI for at least  five.years, id. art. VI, Sec. Sec. 10(a)(1), 11(a)(2); 8 and  the members of the Political Status Advisory Commission would be  required to have been ``domiciliaries'' of the USVI for ``a minimum of  five years,'' id, art. XVII, Sec. 1(b). In addition, the proposed  constitution would require that USVI Senators be ``domiciled'' intheir  legislative district ``for at least one year immediately preceding the  first date of filing for office.'' Id. art. V, Sec. 3(c).

---------------------------------------------------------------------------    

\8\ The proposed constitution appears ambiguous with respect to how  this five-year period is determined. It provides: ``There shall be an  Attorney General, who shall be appointed by the Governor with the  advice and consent of the Senate, and a t the time of the appointment  must...have resided in the Virgin Islands at least five (5) years next  preceding his election.'' See Proposed Const. art. VI, Sec. 10(a)(1).  Given that the Attorney General would be appointed rather than elected,  the reference to the period ``next preceding his election'' seems  unclear.

---------------------------------------------------------------------------    

These requirements, particularly those requiring more than five  years of residence, raise potential equal protection concerns. The Supreme Court has summarily affirmed three decisions upholding five- to  seven-year residence requirements for state senators and governors, see  Chimento v. Stark, 353 F. Supp. 1211, 127 (D.N.H. 1973), aff'd, 414  U.S. 802 (1973); Kanapaux v. Ellisor (D.S.C. unreported), aff'd, 419  U.S. 891 (1974); Sununu v. Stark, 383 F. Supp. 1287 (D.N.H. 1974),  aff'd, 420 U.S. 958 (1975), and lower courts have upheld relatively  brief durational residency requirements for state or local offices,  typically applying only rational basis review and deeming such laws  adequately justified by the governmental interest in ensuring  familiarity with local concerns. 9 But in some cases lower courts have struck down laws imposing residence requirements of five or  more years on certain state or local offices.

---------------------------------------------------------------------------    

\9}\See, e.g., City ofAkron v. Bell, 660 F,2d 166, 168 (6th Cir.  1981) (one-year residence requirement for city council members);  MacDonald v. City of Henderson, 818 F. Supp. 303, 306 (D. Nev. 1993)  (one-year residence requirement for city council); Hankins v. Hawaii,  639 F. Supp. 1552, 1556 (D. Hawaii 1986) (five-year residence  requirement for Hawaii governor under state constitution); Schiavone v.  DeStefano, 852 A.2d 862, 866-67 (Conn. Sup. Ct. 2001) (fiveyear  residence requirement for city mayor); Civil Service Merit Bd of City  of Knoxville v. Burson, 816 S.W.2d 725; 734 (Tenn. 1991) (one-year  residence requirement for municipal civil service boards); State ex  rel. Brown v. Summit County Bd. of Elections, 545 N.E.2d 1256, 125960  (Ohio 1989) (two-year residence requirement for city council);  Langmeyer v. Idaho, 656 P.2d 114, 118 (Idaho 1982) (five-year residence  requirement for appointment to local planning and zoning board); cf.  Thournir v. Meyer, 909 F.2d 408, 411 (10th Cir. 1990) (upholding under  rational basis review state requirement that unaffiliated candidates  have been registered as unaffiliated voters in the state for at least  one year before filing for office); White v. Manchin, 318 S.E.2d 470,  488, 491 (W.Va. 1984) (applying strict scrutiny based on the  fundamental right ``to become a candidate for public office'' but  upholding state constitutional requirement that state senators have  resided in their district for at least one year before their election).     \10}\See, e.g., Antonio v. Kirkpatrick, 579 F.2d 1147, 1151 (8th  Cir. 1978) (invalidating tenyear residence requirement for State  Auditor); Brill v, Carter, 455 F. Supp. 172, 174-75 (D. Md. 1978)  (invalidating four-year residence requirement for members of county  council); Billington v. Hayduk, 439 F. Supp. 975, 978-79 (S.D.N.Y;)  (invalidating five-year residence requirement for county executive),  aff'd on other grounds, 565 F.2d 824 (2d Cir. 1977); cf. Robertson v.  Bartels, 150 F. Supp. 2d 691, 696, 699 (D.N.J. 2001) (applying strict  scrutiny based on ``the combined right of persons to run for public  office and the right of voters to vote for candidates of their choice''  and invalidating state requirement that state legislators have resided  within their legislative districts for at least one year); Peloza v.  Freels, 871 P.2d 687, 691 (Alaska 1994) (applying heightened scrutiny  under state constitution and invalidating three-year residence  requirement for city council).     In Clements v. Fashing, 457 U.S. 957 (1982), a plurality of the  Supreme Court observed that ``the existence of barriers to a  candidate's access to the ballot `does not of itself compel close  scrutiny,''' and that ``[d]ecision in this area of constitutional  adjudication is a matter of degree, and involves a consideration of the  facts and circumstances behind the law, the interests the State seeks  to protect by placing restrictions on candidacy, and the nature of the  interests of those who may be burdened by the restrictions.'' Id. at  963 (plurality opinion) (quoting Bullock v. Carter, 405 U.S. 134, 143  (1972)). Clements, however, did not involve durational residence  requirements, but rather provisions requiring a waiting period or  mandatory resignation before certain current state officeholders could  seek new elective offices. See id. at 966-71. In another case, a  concurring opinion, citing Chimento's approval of a seven-year  residence requirement for a state governor, suggested that residence  requirements may serve legitimate purposes, but this opinion did not  elaborate on how long a period of prior residence may be required. See  Zobel, 457 U.S. at 70 (Brennan, J., concurring) (observing that  ``allegiance and attachment may be rationally measured by length of  residence...and allegiance and attachment may bear some rational  relationship to a very limited number of legitimate state purposes'').

---------------------------------------------------------------------------    

Insofar as the territorial status and unique history and geography  of the USVI make familiarity with local issues particularly important  for office-holders there, the governmental interests supporting  durational residence requirements for USVI offices may be particularly  strong. 11 Yet at least some courts might consider the  lengthy residence requirements hereparticularly the ten- or fifteen- year periods required for USVI judges, Governors, and Lieutenant  Governors-unjustified. 12 Accordingly, we would recommend that consideration be given to shortening the ten- and fifteen-year  residence requirements for USVI Governors, Lieutenant Governors, and  judges.

 ---------------------------------------------------------------------------    

\11}\See, e.g., Hankins, 639 F. Supp, at 1556 (observing that  ``[t]he State has a strong interest in the assurance that its governor  will be a person who understands the conditions of life in Hawaii'' and  that ``[t]his concern has `particular relevance in a small and  comparatively sparsely populated state' (quoting Chimento, 353 F. Supp.  at 1215)); cf. Bell, 660 F.2d at 168 (noting that ``the interests of [a  state or local] governmental unit in knowledgeable candidates and  knowledgeable voters may be served by differing lengths of durational  residency requirements'').     \12}\Cf. Clements, 457 U.S. at 963 (plurality opinion) (observing  that ``[d]ecision in this area of constitutional adjudication is a  matter of degree''); Summit County Bd. of Elections, 545 N.E.2d at 1260  (upholding two-year residence requirement but deeming it ``conceivable  that such a requirement may be too long in duration to serve a  legitimate state interest'').

---------------------------------------------------------------------------

C.  Territorial Waters, Marine Resources, and Submerged Lands

Third, Article Xii, Section 2, concerning ``Preservation of Natural Resources,'' states:        

The Government shall have the power to manage, control and          develop the natural and marine resources comprising of          submerged lands, inlets, and cays; to reserve to itself all          such rights to internal waters between the individual islands, claim sovereignty over its inter-island waters to the effect that the territorial waters shall extend 12 nautical miles from each island coast up to the international boundaries. This is an alienable right of the people of the Virgin Islands of the U.S. and shall be safeguarded.    

The intended meaning and effect of this provision are not entirely  clear. To the extent that its reference to a claim of ``sovereignty'' over coastal waters is intended to derogate from the sovereignty of the  United States over those waters, it is inconsistent with federal law  and should be removed. See Proclamation No. 5928, 54 Fed. Reg. 777  (Jan. 9, 1989) (proclamation of U.S. territorial sea). In addition, by  statute, the United States has, subject to certain exceptions, conveyed  to the USVI its right, title, and interest in submerged lands and  mineral rights in those submerged lands out to three miles. See 48  U.S.C. Sec. Sec. 1705, 1706 (2006); see also, e.g., Proclamation No.  7399, 66 Fed. Reg. 7364 (Jan. 22, 2001) (proclamation of Virgin Islands  Coral Reef National Monument). Any assertion of USVI control over  submerged lands and mineral rights beyond those federal statutory  limits would be inconsistent with federal law and should be removed.  Federal law also reserves to the United States exclusive management  rights over fisheries within the ``exclusive economic zone.'' See 16  U.S.C. Sec. 1811(a) (2006). Again, the proposed constitution must be  made consistent with this federal statutory mandate, While the final  sentence of Article Xll, Section 2 acknowledges that the rights it  addresses are alienable, we recommend modifying this language to make  clearer that these matters are subject to Congress's plenary authority.

---------------------------------------------------------------------------    

\13}\After the Department of Justice had completed its memorandum,  we received a copy of a letter from several members of the Fifth  Constitutional Convention to Delegate Christensen in which they raised,  among other things, a concern about another article in the proposed  constitution addressing submerged lands. See Letter for Hon. Donna M.  Christensen, from Craig Barshinger at al. (Jan. 29, 2010). Article XV,  concerning ``Protection of the Environment,'' provides in Section 4:     Submerged, Filled and Reclaimed Lands     Submerged lands, filled and reclaimed lands in the Virgin Islands  are public lands belonging collectively to the people of the Virgin  Islands, and shall not be sold or transferred. The Virgin Islands of  the United States cannot be sold or transferred.     Because this provision comes in an Article on environmental  protection and follows sections on establishing a land, air and water  preservation commission and protecting public access to beaches, we  understood it as directed at private owners. To the extent the second  sentence could be read as purporting to limit Congress's power under  the Territories Clause of the Constitution, see U.S. Const. art. IV,  sec,, to transfer the USVI, we agree that it should be amended to  remove any ambiguity on that score.

---------------------------------------------------------------------------    

I would like to emphasize that my statement has focused on three  aspects of the proposed constitution that we believe Congress should  consider revising because we believed that discussing those provisions  would be most helpful to the subcommittee as its considers what action  to take in response to the transmittal of the proposed constitution.  Let me close by echoing President Obama's letter of transmittal in  commending the electorate Virgin Islands and its governmental  representatives in their continuing commitment to increasing self- government and the rule of law,     I would be happy to address any questions you may have. I would be  grateful if the Department's memorandum could be inserted in the record  of this hearing immediately following my statement.                                  ______                                       [NOTE: Memorandum submitted for the record has been retained in the Committee's official files.]     

Ms. Bordallo: Thank you, Mr. Cedarbaum, very much for your testimony. And I now have the privilege of recognizing the distinguished Governor from the Virgin Islands.

Governor, thank you very much for traveling here to the Nation's Capital, although the Virgin Islands does not have as long a trip as  Guam does, to be with us. And given your standing as Governor, in keeping with the tradition of our Subcommittee, please know  that we will be considerate of your time and appreciate your  highlighting and summarizing the key points for us to consider.  Please proceed.


STATEMENT OF HON. JOHN P. deJONGH, GOVERNOR, US VIRGIN ISLANDS

Governor deJongh: Thank you. Thank you, Madame Chair. Good  afternoon. My name is John deJongh, and I am Governor of the United States Virgin Islands. On behalf of the people of the Virgin Islands, I want to thank you, Madame Chair, Ranking Member Young, and my friend, Delegate Christensen, for inviting  me here to be heard on this issue of enormous political,  emotional, and moral importance to me and to all Virgin  Islanders.

Let me begin by stating very clearly that I believe the development of a constitution for our territory is an extremely important milestone and goal for our citizens, and I look forward very much to the day when the Virgin Islands approves a constitution for all of the people to be proud of.

With respect to the proposed Virgin Islands constitution that is before you, I am here today to reiterate my already express positions on the document, which for me has come down to a very simple and straightforward issue of civil rights. Our population hails from all parts of the Caribbean and all parts of the world. Those who are native Virgin Islanders, as well as those who come and live among us in the Virgin Islands, are and must be treated as equal, fully protected by the laws of the United States and the laws of the Virgin Islands.

Virgin Islanders do not want to be treated, nor do we want our children treated, as second-class citizens when they come to the U.S. mainland, and you would not want to be treated or to have your children treated as second-class citizens if you or they moved to the United States Virgin Islands. That is why when the proposed constitution first came to me, I felt that it did not, under the terms of law that Congress had written, meet the standards that Congress had set, and indeed did not even qualify to be defined or treated as a constitution. It did not, could not, and does not now have my endorsement, my support, or my approval. And it is my belief and hope that it should not have your support either.

 The question then has become what do we do, how do we respond to a fundamentally flawed proposed constitution. I believe we must be guided first and foremost by the stated principle, well-said by our first President, George Washington, the basis for our political system is the right of the people  to make their own constitutions of government.

We the people of the Virgin Islands possess that right, formally conferred upon us by this body, but in truth rooted in the very sacred and inviolable American values that formed the foundation of our system of government that the founding fathers created over two centuries ago. As a native Virgin Islander, I believe with deep conviction the Virgin Islands will fully come into its own politically, economically, and culturally only when its people write and consider and ratify their own constitution, a constitution by, of, and for all people of the Virgin Islands.

At the same time, I am chief executive of the government of the Virgin Islands. In that capacity, I swore an oath before God to support, obey, and defend both the laws of the Virgin Islands and the constitution and the laws of the United States.  As a native Virgin Islander and as an American, I believe these twin obligations are not and cannot be inconsistent, and it is for that reason that I took the very strong position that the  proposed constitution of the United States Virgin Islands  presently before you is not acceptable, and it is, in fact,  unconstitutional on its face.    

First, as I referenced earlier, the proposed constitution fails to recognize the supremacy of the Constitution and the laws of the United States. The Department of Justice has concluded that despite the omission of any express recognition of U.S. constitutional supremacy, the proposed constitution is in substantial compliance with the statutory requirements. Perhaps so. But that substantial compliance, such as it is, does nothing to correct the political and the symbolic harm created by the convention's conscious and deliberate decision not to expressly recognize the supremacy of the Constitution  and laws of the country for which the Virgin Islands is a proud  part.     Second, the proposed constitution openly creates invidious distinctions among the people of the Virgin Islands. Third, the proposed constitution is inconsistent with the principles of  one-person, one-vote that lies at the heart of the concept of  equality in our democracy. Under the proposed constitution, the  people of the Virgin Islands would be divided into those who  carry full privileges of the Virgin Islands and those who do  not, between those who are eligible to serve the people, and  those who are not. Such classifications could not be more contrary to the most fundamental of all American values, the  self-evident truth that all men are created equal, are endowed  by their creator with certain inalienable right, are entitled  to equal protection of the laws.    

The proposed constitution, with its carveouts and special preferences, assails these fundamental values. As a matter of U.S. constitutional law it is indefensible, as a political act it is divisive, and as a matter of history it is a dangerous  step backwards in our centuries-long struggle, which has been  joined by generations of Virgin Islanders for full and equal  civil rights.

In addition to speaking to you about the proposed constitution and highlighting those areas of grave concern to me as Governor, I am also here to speak to you today just as importantly about the next steps for the document before this committee. I want to state for the record with equal conviction my opinion and desires for the next steps in this process, which are to be exercised by this Congress.

Congress has the authority to empower, to modify in part or in whole, the proposed constitution before you. Congress indeed has the power implicit in the statute and inherent in its legislative authority to reject the proposed constitution outright. If this should end up being the decision of this Congress, that we will abide by such and begin the process anew with an even stronger determination to ensure that a constitution is produced by a future constitutional convention that focuses on and supports the rights of all citizens of the Virgin Islands.

However, with respect to the modifications to the currently proposed constitution, I want to request clearly very clearly that the committee avoid such an option. As you know, the Minority Members of the USVI Constitutional Convention have urged this Congress to modify the proposed constitution in order to strip out its most offensive details and approve the  document as amended.

I have great respect and admiration for those Minority Members who have spoken on this matter. But I urge this committee to reach a different result. I believe it is critical to the continued political development of the Virgin Islands that our constitution when finally adopted be the product solely of the labors of the Virgin Islands. A constitution that has been edited by Congress, however good its intentions, will be seen in the territory as an exercise that runs contrary and counter to truth self-governance. It is my view that it falls to the people of the Virgin Islands to correct on its own the deficiencies so blatantly evident in the proposed constitution.     Therefore, if this proposed constitution is not rejected based on its failure to meet the requirements of constitutionality, I would request at this juncture that you return the proposed constitution to the people of the Virgin  Islands and leave it to them either accept or reject this  document.

I have made no secret of my views on this proposed constitution. I believe that the people should reject it. I also believe that they ultimately will. But I just as strongly believe that such a decision belongs with the people of the  Virgin Islands.

In conclusion, I would simply say this. I am a native Virgin Islander. I am also an American. Those identities are not separable. To be a Virgin Islander is to be an American.  The overriding flow of the proposed constitution before you is that in an effort to recognize and honor the unique contributions of those of us who are natives, it would sacrifice the values that make us Americans. As a Virgin Islander, as an American, and as an office of the government sworn to support and defend the Constitution of the United States, I cannot countenance that result. I ask that Congress not do so either, while also allowing us the ability to  determine our own political faith. Thank you.

    [The prepared statement of Governor deJongh follows:]            Statement of The Honorable John de Jongh, Governor,                        United States Virgin Islands     

Good afternoon. My name is John de Jongh, and I am the Governor of the United States Virgin Islands. On behalf of the people of the Virgin Islands, I want to thank the Committee and my friend Delegate Christensen for inviting me here to be heard on this issue of enormous  political, emotional and moral importance to me and to all Virgin  Islanders.    

Let me begin by stating very clearly that I believe the development of a constitution for our Territory is an extremely important milestone and goal for our citizens and that I look very much forward to the day  when the Virgin Islands approves a Constitution that all of our people  can be proud of.   

 With respect to the proposed Virgin Islands constitution that is before you, I am here today to reiterate my already expressed positions on the document which for me has come down to a very simple and straightforward issue of civil rights.    

Our population hails from all parts of the Caribbean and all parts of the world. Those who are native Virgin Islanders, as well as those who come to live among us in the Virgin Islands are, and must be, treated as equals--fully protected by the laws of the United States and  the laws of the Virgin Islands. Virgin Islanders do not want to be treated, nor do we want our children treated as second class citizens when we come to the U.S. mainland and you would not want to be treated, or have your children treated as second class citizens if you or they  move to the U.S. Virgin Islands.    

That is why, when the proposed constitution first came to me, I felt that it did not, under the terms of the law Congress had written, meet the standards that Congress had set, indeed that it did not even qualify to be defined and treated as a constitution. It did not, could not, and does not now, have my endorsement, my support or my approval.  And it is my belief, and hope, that it should not have your support either.    

The question, then, has become what to do in response to a fundamentally flawed proposed constitution. I believe we must be guided, first and foremost, by a principle stated well by our first President, George Washington: ``the basis for our political system is the right of the people to make their own constitutions of government.''    

We, the people of the Virgin Islands, possess that right--formally conferred unto us by this body but in truth rooted in the very sacred and inviolable American values that form the foundation of our system of government as the Founding Fathers created it over two centuries ago.    

As a native Virgin Islander, I believe with deep conviction that the Virgin Islands will fully come into its own, politically, economically, and culturally, only when its people write, and consider,  and ratify, their own constitution--a constitution by, of, and for all  the people of the Virgin Islands.    

At the same time, I am the Chief Executive of the Government of the Virgin Islands. In that capacity I swore an oath before God to  ``support, obey and defend'' both ``the laws of the Virgin Islands'' and ``the Constitution and laws of the United States.'' As a native Virgin Islander and as an American, I believe these twin obligations are not, and cannot be, inconsistent. And it is for that reason that I took the very strong position that the proposed Constitution of the United States Virgin Islands presently before you is not acceptable and  is in fact unconstitutional on its face.   

 First, as I referenced earlier, the proposed constitution fails to recognize the supremacy of the Constitution and laws of the United States. The U.S. Department of Justice has concluded that despite the omission of any express recognition of U.S. constitutional supremacy, the proposed constitution is in ``substantial compliance'' with the  statutory requirements. Perhaps so. But that ``substantial  compliance,'' such as it is, does nothing to correct the political and  symbolic harm created by the convention's conscious and deliberate  decision not to expressly recognize the supremacy of the constitution  and laws of the country of which the Virgin Islands is a proud part.     Second, the proposed constitution openly creates invidious  distinctions among the people of the Virgin Islands.     Third, the proposed constitution is inconsistent with the principle of ``one person, one vote'' that lies at the heart of the concept of equality in our democracy. Under the proposed constitution, the people of the Virgin Islands would be divided into those who carry full privileges of the Virgin Islands, and those who do not; between those  who are eligible to serve the people, and those who are not. Such classifications could not be more contrary to the most fundamental of all American values: the self-evident truth that all men are created  equal, are endowed by their Creator with certain inalienable rights,  and are entitled to the equal protection of the laws.    
The proposed constitution, with its carve-outs and special preferences, assails these fundamental values. As a matter of U.S.  Constitutional law, it is indefensible; as a political act, it is divisive; and as a matter of history, it is a dangerous step backwards in our centuries-long struggle, which has been joined by generations of Virgin Islanders, for full and equal civil rights.     In addition to speaking to you about the proposed constitution and highlighting those areas of grave concern to me as Governor, I am also here today to speak to you, just as importantly about the next steps for the document before this Committee. I want to state for the record, with equal conviction, my opinion and desires for the next steps in this process which are to be exercised by this Congress.     Congress has the authority and power to modify, in part, or in whole, the proposed constitution before you. Congress indeed has the power, implicit in the statute and inherent in its legislative authority, to reject the proposed constitution outright. If this should end up being the decision of this Congress then we will abide by such and begin the process anew with an even stronger determination to ensure that any constitution produced by a future constitutional convention focuses on, and supports, the rights of all the citizens of  the Virgin Islands.     However, with respect to modifications to the currently proposed constitution, I want to request very clearly that the Committee avoid such an option. As you know, the minority members of the USVI Constitutional Convention have urged this Congress to modify the proposed constitution in order to strip out its most offensive details,  and approve the document, as amended.    

I have great respect and admiration for those minority members who have spoken out on this matter; but I urge this Committee to reach a different result. I believe it is critical to the continued political development of the Virgin Islands that our constitution, when finally adopted, be the product solely of the labors of Virgin Islanders.

A constitution that has been edited by Congress, however good its intentions, will be seen in the Islands as an exercise that runs contrary and counter to true local self-governance.

It is my view that it falls to the people of the Virgin Islands to correct, on our own, the deficiencies so blatantly evident in the proposed constitution. Therefore if this proposed constitution is not rejected based on its failure to meet the requirements of constitutionality, I would request, at this juncture, that you return the proposed constitution to the people of the Virgin Islands and leave  it to them to either accept, or reject this document.

I have made no secret of my views on this proposed constitution. I believe that the people should reject it, and also believe that they ultimately will. But I just as strongly believe that such a decision belongs with the people of the Virgin Islands.

In conclusion, I would simply say this. I am a native Virgin Islander. I am also an American. Those identities are not separable: to be a Virgin Islander is to be an American. The overriding flaw of the proposed constitution before you is that, in its effort to recognize and honor the unique contributions of those of us who are natives, it  would sacrifice the values that make us Americans.

As a Virgin Islander, as an American, and as an officer of the government sworn to support and defend the Constitution of the United  States, I cannot countenance that result. I ask that Congress not do so either while also allowing us the ability to determine our own  political fate.    

Thank you

 

LinkWithin

Related Posts with Thumbnails