Open Forum: How to Save $900,000 in Constructing a Constitution

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You asked a group of highly-skilled and educated professionals to build a house for you.  They tried five times. They built a house, it collapsed. They tried again, the house collapsed. Though you could never live in the house, you had to pay for the construction each time, nearly a million dollars (in present value of money) for each of the five attempts. Now, you are out about five million dollars — and those educated builders come back to you and say, “This time, we can do it right.” Do you say Yes? Or follow Albert Einstein’s advice that: “The definition of insanity is doing the same thing over and over and expecting different results.” 

Attorney Russell Pate, president of the USVI Bar Association. (Photo from law firm website)
Attorney Russell Pate (Source file photo)

I think by now you understand I am talking about the Virgin Islands’ Sixth Constitutional Convention. Last week, Gov. Albert Bryan Jr. approved Senate Bill No. 34-0153, which establishes the Sixth Constitutional Convention. However, the governor pointed out, the Convention does not have a funding source.

As a short background, the Virgin Islands has made five prior attempts to write a Constitution, in 1964-65, 1971-72, 1977-78, 1980-81 and 2007-12. Each Convention had delegates, usually 30 to 60 people of the highest skill, education and reputation. There was no shortage of brain-power.  

Still, each time was a failure. The reasons for failure were diverse. But generally it was the result of the V.I. Constitution including provisions that would violate the U.S. Constitution. For example, the Fifth Convention required that only native-born Virgin Islanders could be governor, which is an interesting insult to perhaps Barack Obama, who after his presidency could have moved to the Virgin Islands, enjoyed life here, and then desired to run for governor with the support of the people, yet be barred from running for office.  

I surely do not have the brain power of the hundreds of prior constitutional delegates. But sometimes more people, more brains, more egos, actually complicates the simple.  The courts of the Virgin Islands and the courts of the United States have repeatedly said that the Virgin Islands already has a Constitution in the Revised Organic Act passed by the U.S. Congress in 1954.  

Essentially, we have tried to construct a brand-new house (and failed five times) when we already live in a house. Our house is not perfect. It has its flaws. Our house has been “rented” under the Revised Organic Act, and as a renter Virgin Islanders have not been able to modify or renovate the house without permission from the landlord, the U.S. Congress. But once we simply accept to take the rental house that we live in already — we will be given the Deed, Title and Ownership. Then we finally own Our House, and we are free to amend, modify, renovate and modernize Our House in future years as owners, not renters.  

  • Adopt the Revised Organic Act as the Virgin Islands’ Constitution 

The United States Congress passed laws in 1936 and 1954 that created a local system of government (a governor, Legislature and court system) for the Virgin Islands. These basic over-arching laws were called “Organic Acts” as they were creating a new system.  The Revised Organic Act of 1954 was styled by Congress as the “basic charter of civil government for the people of the Virgin Islands of the United States” and it is the most recent update giving Virgin Islanders greater local government powers and a Bill of Rights. At present, there are 54 giant printed books of all the congressional laws; the Revised Organic Act for the Virgin Islands is found in Book 48 at Chapter 7, Virgin Islands, Sections 1391-1409 and also Chapter 12, Virgin Islands, Sections 1541-1645, and some tailing provisions regarding our Delegate to Congress as Chapter 16, Sections 1711-1715.

The Revised Organic Act is already the de facto constitution of the Virgin Islands. It’s “pre-approved.” That means that Congress and the president cannot legally veto this “Constitution” as we already operate under this “Constitution.” The federal Third Circuit Court of Appeals (which includes Delaware, New Jersey, Pennsylvania, and the Virgin Islands — though the Virgin Islands is the only jurisdiction not to have a sitting judge on the court that oversees us) has stated many times that the Revised Organic Act serves as a de facto Constitution for the Virgin Islands. See, Hendrickson v. Reg O Co., 657 F.2d 9, 14 (3d Cir. 1981)(“the Revised Organic Act, extends the federal constitution to the fullest extent possible to the Virgin Islands[.]”); Callwood v. Enos, 230 F.3d 627, 630 (3d Cir. 2000)(“Congress enacted the Revised Organic Act of 1954, which serves as the Constitution of the Virgin Islands.”)

  • Next, Set Up a Constitutional Amendment Process

All 50 states have various methods and procedures for amending their state constitutions. The vast majority of states require a constitutional amendment to be proposed in their Legislature first, which must pass by a super-majority legislative vote.  The proposed amendment is then placed on the next General Election ballot for approval by a majority of voters. All the V.I. has to do is choose this “pre-approved” method, which already has Congressional approval for the 50 states. Once Congress and the president approve of our formal adoption of the Revised Organic Act as the Virgin Islands Constitution, we are free to start amending our Constitution. Simply put, we are renters that have been “pre-approved” to become true home-owners the moment we accept ownership of the house we are renting. Next, we have the ability to move for statehood.  

  • Congratulations, You Have a Constitution and You Saved $900,000 

Our first amendments to the Revised Organic Act would be adding in the election of two United States Senators and one House Representative, along with collecting votes for the president of the United States. As to how to structure the amendment process, just follow the vast majority of state procedures, which require a super-majority legislative vote for a constitutional amendment. Then the amendment is placed on a General Election ballot for approval by the voters. (Likely, until we have statehood, these congressional representatives would be “shadow senators” like what Washington, D.C. does by sending a non-voting delegate to the House and two unofficial “shadow senators” to the Senate. I have written prior op-eds regarding how the Virgin Islands should vociferously push for full representation in Congress as Virgin Islanders have voluntarily fought — and been drafted — for various United States wars — and we should not wait until statehood for congressional representation but demand it now as United States citizens. See prior Op-Eds such as Stand or kneel? The NFL teaches America, Feb. 8, 2018 and The border wall could be an opening to gain enfranchisement for the territories, Feb. 10, 2019)

For Virgin Islands constitutional amendments I would recommend a super-majority of Senators, 12 of 15 voting in the affirmative, to put an Amendment referendum on the next election ballot. I would then recommend a 65 percent floor for approval by the voters. (This super-majority recommendation is a higher percentage than required by most states, because most states have a two-chamber Legislature for extra vetting, yet the Virgin Islands has a unicameral, one-chamber, Legislature. Thus, the public voters’ super-majority acts as extra vetting.) Still, amending a state constitution is not supposed to be too hard. The average number of amendments for a state constitution is 115, far more than the U.S. Constitution’s 27 amendments.

Once the Virgin Islands tackles the most important amendments first, Congressional Voting Rights and Representation for United States Virgin Islanders; then we can consider other modifications and renovations to Our House. Does the Virgin Islands want an elected attorney general to represent the people, like the majority of other states? 

Instead of trying to build a brand new house for a sixth time, with another big and expensive collapse, let’s just accept as owners the house the Virgin Islands has been renting since 1917. Adopting the Revised Organic Act as our initial Constitution represents “pre-approved” ownership. Then we can modify, renovate and amend Our House — our Virgin Islands Constitution — however we see fit through our own local constitutional amendments — which then would not need the approval of the United States Congress or the president. I am not the first to propose this simple solution but only stand on the shoulders of Mary Moorhead and Sen. Novelle Francis Jr. and many others. Let’s for once, try the easy, simple and cost-effective path to home ownership. 

— Russell Pate is an attorney on St. Croix.

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