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.
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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.
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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
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