USVI’s End-run Against America’s State Constitutional Tradition

J.H. Snider is the president of iSolon.org and edits the USVI Constitutional Convention Clearinghouse and the U.S. State Constitutional Convention Clearinghouse.

In this week’s “Constitutional Conversations” post, J.H. Snider offers a critique of the efforts of the U.S. Virgin Islands’ territorial legislature and its Congresswoman to hijack the process of creating a permanent constitution, by depriving the Islands’ people of the right to meet to select their own representatives to a constitutional convention and of the opportunity to consent to the constitution it drafts.

How should a U.S. territory win a constitution? The U.S. Virgin Islands (USVI) currently illustrates the wrong way. But, through its blatant anti-democratic excesses, it may offer a rare opportunity to update America’s constitutional convention tradition.

The U.S. currently has fifty state constitutions plus three territorial constitutions for a total of 53 subnational constitutions. Only two of America’s five territories, USVI and Guam, currently lack their own constitution. Instead, they have “organic acts” created and amended by Congress.

Understandably, USVI’s Legislature wants USVI, not the Federal Government, to control USVI’s fundamental law. Accordingly, USVI’s Legislature has six times since the early 1960s approved an enabling act to call a “constitutional convention” to propose a constitution, which to become law must be ratified by both USVI voters and Congress. For disputed reasons, the first five attempts failed.

In 2020, USVI’s Legislature proposed and voters approved a call for a “sixth constitutional convention.” The call granted the Legislature the option to pass an enabling act to convene a convention. During the wee hours of the night during the last day of the Legislature’s 2022 session--almost 26 months since voters approved the convention call--the Legislature passed an enabling act to convene a convention. In late-January 2023, the Governor signed it into law, after which citizens were allowed to see the act’s text for the first time.

Within days of the enabling act becoming public, I contacted both the Governor’s senior staff and the act’s co-sponsors in the Legislature to alert them to major inconsistencies in the act’s text that made it impossible to implement. For example, the extraordinary 26-month delay in approving the act resulted in its once-future dates becoming past dates to: 1) elect delegates to a convention; 2) convene a convention; and 3) ratify a convention. Only the date for electing convention delegates was updated prior to the act’s passage. Similarly, delegate districting was changed at the last minute but not consistently across the text. Thus, the enacted act became impossible to implement.

The Governor’s and Co-Sponsors’ staff agreed that the enabling act would need a fix to become workable. But scheduled dates for holding a hearing on this issue were repeatedly postponed and now appear indefinitely postponed.

Alas, the biggest problem with the enabling act wasn’t its internal incoherence; it was that it gave the Legislature excessive control over the convention via its design of the convention’s delegate election process, staffing, and budget line items. Such Legislature control is arguably either illegal or at least legally unenforceable, as a U.S. territorial convention during its brief life should function as a fourth branch of government, which entails that a competing lawmaking branch cannot exercise such powers over it.

To avoid such pitfalls, the Legislature has recently shifted to a new strategy. On April 28, 2023, USVI Congresswoman Stacey Plaskett introduced legislation to have Congress adopt USVI’s organic act as its constitution while granting USVI’s Legislature the monopoly proposal power over future amendment previously held by Congress. If successfully implemented, this strategy will enable the Legislature to bypass the traditional Congressional requirement that a territorial legislature must convene a convention outside its control if it wants to win a constitution. It could then propose any constitutional amendments that it liked.

The Legislature’s political calculation is that Congress will approve USVI’s organic act as USVI’s constitution—subject to minor modifications such as the revised amendment provision—because Congress will be approving its own handiwork. Left unsaid is that this would flagrantly violate America’s tradition of subnational constitutionalism. Not since Nebraska’s 1866 Constitution has Congress allowed a U.S. territory to win its own state constitution without an independently elected constitutional convention whose function is to propose a constitution that must then be ratified by both Congress and the territory’s citizens to become law. Indeed, in the decades after Massachusetts in 1780 pioneered the method, it had become the norm to use a convention independent of the legislature to propose a constitution, which the people could then approve or reject.

The U.S. House Natural Resources Committee, which includes the Subcommittee on Indian and Insular Affairs with jurisdiction over U.S. territories, should reject Plaskett’s bill as a democratic travesty inconsistent with America’s subnational constitutional tradition. The reason that America hasn’t allowed territorial legislatures to propose and ratify their own constitutions is because they would have a blatant conflict of interest in doing so. Fundamental to American constitutionalism is that higher law (such as a written constitution), must be passed in a way that not only differs from ordinary law (such as a statute passed by a legislature), but also doesn’t grant those in control of ordinary law control over higher law as well. Otherwise, legislatures would have the power to enhance their own power at the people’s expense.

That type of power grab is what USVI’s Legislature is now doing for the sixth time in USVI’s history. The first five times it hijacked the convention process, either Congress or USVI’s voters refused to ratify the convention’s resulting undemocratic proposals. The first two times, the Legislature appointed its own members to be convention delegates; the next three times, its efforts at control were more subtle but still a gross violation of the democratic purpose of the independent convention process. Plaskett’s bill merely represents a novel strategy to implement this power grab.

Perhaps, as the Legislature hopes, its sixth attempt at hijacking the constitutional convention process will be the charm. Given the public’s ignorance of an independent convention’s democratic function combined with widespread elite hostility to the convention process, I’d estimate the Legislature’s odds of success are not negligible.

America’s lawmaking processes are deeply flawed and in desperate need of democratic reform at both the ordinary and higher levels. For example, just as we might seek to reform legislative elections (e.g., with open primaries and ranked-choice voting), it’s important that we also seek to reform convention delegate elections, which have special requirements (e.g., incumbent legislators and other government officials shouldn’t be allowed to serve as convention delegates, just like plural office holding across other government branches is constitutionally banned) and, due to archaic features, may feel in part like election relics from the 19th Century (e.g., the lack of primaries).

My hope is that USVI’s outrageous and blatant abuse of the convention process, which is central to America’s democratic constitutional tradition, might create an opportunity to improve that process so it more closely realizes its original democratic function. Higher and lower lawmaking processes should remain sharply separated, with the people empowered in the constitution-making process to hold constituted powers, including legislatures, accountable.

J.H. Snider’s collected op-eds on state constitutional convention referendums can be found at The State Con-Con Papers, Social Science Research Network.