REMARKS by Governor John P. de Jongh, Jr. 
at a Press Conference to Address the Proposed Constitution
from the Fifth Constitutional Convention

June 11, 2009
Government House, St. Thomas

Good afternoon. Thank you all for being here today.

I have called this Press Conference to address the recently submitted Proposed Constitution from the Fifth Constitutional Convention and the actions I have taken with respect to the document.

But, before I begin a full review of the history and the events that have led us here today, I would like to start by restating my firm conviction that we in the Virgin Islands must find our way to write our own Constitution.

The political development of the U.S. Virgin Islands since the transfer of these islands from Denmark in 1917 has been a relentless journey towards increased self-government and Home Rule. 

I feel a great deal of pride as a Virgin Islands leader who has come after so many others who have worked so hard throughout our history so that we could elect our own Governor and Legislature as well as our own Delegate to the United States Congress, have our own Supreme Court, and draft our own laws. 

With the drafting of our own Constitution, we have this one further step to take and I remain fully committed to that goal.

All elected officials in the Virgin Islands take an oath before God to "support, obey and defend the Constitution and laws of the United States applicable to the Virgin Islands and the laws of the Virgin Islands." Today I announce a decision consistent with the oath that I took in January of 2007 as it relates to the document that has been forwarded to me by the Fifth Constitutional Convention. 

Our efforts, past and present, to agree upon and adopt a Constitution for the Virgin Islands has been and remains one of great emotion as well as legal complexities. 

In 1976, the U.S. Congress passed PL 94-584 which authorized the local governments of the U.S. Virgin Islands, and Guam, if they so desired, to initiate local conventions for the purpose of drafting a constitution which, if such constitution met certain requirements that were set forth, in detail, in the law, would be then forwarded to the President of the United States for his comments. The President would then forward it to the U.S. Congress. The Congress would have sixty days in which to approve, or modify the draft by Joint Resolution of the two houses of Congress. If the Congress did not act within such time, the draft would be deemed approved. Thereafter, it would be returned to the Territory for ratification, or rejection, by a referendum of Virgin Islands voters. 

This federal law authorizing the constitutional conventions further contained the following language as it pertains to the Virgin Islands:

“The convention shall submit to the Governor of the Virgin Islands a proposed constitution for the Virgin Islands…which shall comply with the requirements set forth in section 2(b) above. Such constitutions shall be submitted to the President of the United States by the Governor of the Virgin Islands…

What I clearly understand as essential, and unavoidable are the requirements of that referenced Section 2(b). The language of which reads in part:

Such Constitutions shall -- Recognize, and be consistent with, the sovereignty of the United States over the Virgin Islands... and the supremacy of the provisions of the Constitution, treaties, and laws of the United States applicable to the Virgin Islands... including, but not limited to, those provisions of the Organic Act and Revised Organic Act of the Virgin Islands…

It is very important for all of us to understand the requirement: That whatever was proposed by a territorial convention be "consistent with the sovereignty of the United States and the supremacy of the provisions of the Constitution, treaties and laws of the United States applicable to the Virgin Islands..." This was not guidance, it was a requirement, it was mandatory and it was the very definition of a Constitution. If what was produced by a Constitutional Convention failed to meet these requirements it would not be a valid Constitution and it would not be in legal compliance with federal law.

Moreover, a draft that did not meet these standards – these basic requirements - would not comply with our local law either. In Act 6688, and all amendments that followed, the Virgin Islands Legislature acknowledged these requirements. 

Our Local law states that:

“When the Convention, by a two-thirds vote of all the delegates, has agreed upon a proposed Constitution, the President of the Convention shall submit it to the Governor of the Virgin Islands, in compliance with the provisions of Public Law 94-584, section 4...” 

When our Legislature enacted Act 6688, and when it incorporated the federal law's requirements that I previously referenced, the Senate Members knew what they were doing and why. The Legislature understood full well the meaning of the word "shall" which made these requirements mandatory. 

The Legislature also understood the limitations and requirements when it acted. And, I would argue, so did those who sought to become delegates to the Fifth Constitutional Convention and, most assuredly, so did the lawyers hired by the delegates of the Convention. 

For these reasons and for other reasons that I shall explain further, I have concluded, upon the advice of legal counsel, the Opinion of the Attorney General, and my own reading of the plain language of the laws and documents before me, that the proposed Constitution adopted by the Fifth Constitutional Convention does not comply with the law. Indeed, this matter is, to me, both clear on its face and basic to our concepts of equality and fairness.

Before considering where we find ourselves now that this Proposed Constitution has been delivered to me, I would like to review a couple of additional historical facts.

We have long tried to draft and adopt a constitution for the Virgin Islands and I have long been supportive of this goal. But we have not fared well in this effort. Previous attempts have ended in failure in the years 1964/65, 1971, 1977/78, and, most recently, in 1980/81.

During our most recent effort the Fourth Constitutional Convention fully and exhaustively debated many issues before sending a proposed constitution to Congress. When that draft was put to a vote in the Territory, it was rejected. In 2004, when the Virgin Islands Legislature passed Act 6688 creating the 5th Constitutional Convention, it specifically instructed that:

“To avoid lengthy public hearings, discussions, additional fees and other expenses, the Convention shall review and adopt provisions of the Constitution of the Virgin Islands, previously approved by the Fourth Constitutional Convention which are considered by the Convention to be standard and of a non-controversial nature.”

It was intended that the Fifth Constitutional Convention use as much of the work of the Fourth as possible to save both time and money. This direction that was given by our Legislature was not followed by this 5th Constitutional Convention. 

In addition, the recognition of the supremacy of the U.S. Constitution, which had been incorporated in the Fourth Constitutional Convention draft, was neither fully accepted by delegates to the Fifth Convention nor incorporated in the document they eventually adopted. It is very important to note this point: Because the failure to recognize the United States Constitution as the supreme law of the land was not just an oversight – It was in fact, removed from the originally incorporated and adopted language of the Fourth Constitutional Convention draft. 

The delegates also found themselves debating various issues with respect to the status of Native and Ancestral Virgin Islanders which, though defined in the earlier draft of the Fourth Constitutional Convention’s proposal, were not attached to any rights or privileges in the earlier document. Even so, these provisions proved greatly divisive at that time. 

This time those individuals who fit these definitions were now being favored with significant rights and benefits not available to all other Virgin Islands citizens. What was attempted this time was to provide an unconstitutional advantage with respect to property taxes, participation in the amendment of the Constitution and the qualifications to run for and serve as Governor and Lieutenant Governor. 

Legal counsel to the Convention made it clear that such provisions were not consistent with the United States Constitution.

It has been locally reported that at the Fifth Constitutional Convention’s last session on May 26th the Convention Attorney, Lloyd Jordan, told the delegates, and I quote from the article, "As I've said again and again, it's not even close -- this is clearly illegal… The case law is very long on it, it is settled law… I'm not arguing the merits of your position at all, but the law isn't at all ambiguous and this will not go anywhere."

I am not suggesting that attorney Jordan was speaking of what action I would take as Governor, but he certainly was forecasting the fate of the draft being adopted at some point in its further consideration and review.

This document was delivered to me as Governor on June 1, 2009 and I have treated the delivery of this Proposed Constitution as triggering a ten-day period during which it is my duty to determine if the Proposed Constitution complies with the local and federal laws, which authorized its preparation. 

I believe whole heartedly that were I presented with a Proposed Constitution that appeared to comply with the local and federal requirements, then it would indeed be my duty to forward it to the President of the United States for his consideration and further action. 

Act 6688 and PL 94-584 are, however, silent as to what specific action would be required of me, as Governor, if the Proposed Convention fails to comply with the requirements of those laws. 

Therefore, I believe that at this time I need to fulfill my obligations as Governor and that my duty in this matter, as in all official matters, is clear: I must uphold my oath to faithfully administer the laws of the Virgin Islands and the laws of the United States applicable to the Virgin Islands. I can do no less.

During this ten-day period that I have reviewed my duties and obligations with respect to this Proposed Constitution, I asked for the matter to be reviewed by the Attorney General of the Virgin Islands, Vincent Frazer. 

I am now in receipt of the Opinion of the Attorney General. The Attorney General finds that the proposed document does not comply with the requirements of federal and local law. Because the proposed constitution does not meet these requirements, the Attorney General has informed me that I have no further duty at this time with respect to the proposed draft. In other words, the wrongful acts of the Convention in adopting a draft that did not comply with law could not require of me yet another further act not authorized by law.

This conclusion makes sense in several ways. It makes legal sense that a government official cannot be expected, let alone required, to act contrary to law. It makes practical sense because if the role of the Governor were simply to forward whatever he was sent, if the task was simply to pay for postage then this would have been a meaningless requirement. 

I cannot accept the advice to follow what some have said would be the politically expedient and simply forward this document with strong critical comments. It is not an option because I will not forward to the President of the United States a Proposed Constitution that both fails to recognize the supremacy of the Constitution of the United States and is additionally and clearly inconsistent with basic civil rights and protections contained in the U.S. Constitution.

Without quoting at excessive length from the Opinion of the Attorney General, I will state a few of his primary findings.

“We believe the lack of an express statement of the supremacy of U.S. Constitution and laws violates the formal requirements of Public Law 94-584. Not only did the drafters of the Proposed Constitution fail to expressly recognize the supremacy of the U.S. Constitution, but in Article II section 5 it states “This constitution shall be the supreme law of the Virgin Islands”. This provision is in direct contravention of Public Law 94-584 § 2. We believe that type of direct violation, makes the proposed constitution defective.” 

The Attorney General also noted:

“In short, Proposed Article V, Section 2 likely violates the U.S. Constitution’s Equal Protection Clause by over representing St. John and under representing St. Thomas and St. Croix in the Senate. There does not appear to be any legally sufficient justification for this departure from the “one person, one vote” principle.” 

And lastly Attorney General Frazer concluded:

“In summary, it is my opinion that the Proposed Constitution is clearly deficient in several respects. First, it does not satisfy the formal requirement that any new constitution “recognize . . . the supremacy of the . . . Constitution, treaties and laws of the United States” as required by Pub. L. 94-584, § 2(b)(1). 

Second, the provision granting a property tax exemption only to “native” Virgin Islanders is a clear violation of the Equal Protection Clause. 

And third, the same is true of the provision granting them, and only them, the right to vote on constitutional amendments even if they are not currently citizens of the Virgin Islands. I also believe the provisions restricting candidates for governor and lieutenant governor to Native Virgin “one man, one vote” principle Islanders are likely unconstitutional as well.”

For these reasons, I have concluded that my duty as Governor here is clear and that I am not in a position to legally forward the document that was sent to me to the President of the United States. I also at this time want to make an observation of a more personal nature. Surely no one should expect me -- One of only three African American Governors in our Nation -- and, by the way, a Native and Ancestral Virgin Islander -- to forward a Proposed Constitution that is clearly unconstitutional to our Nation's first African American President, who happens to also be a constitutional scholar and a former law professor.

A man, incidentally, who even though he has been elected to our nation’s highest office would be ineligible to run for Governor or Lt. Governor of this U.S. territory no matter how many years he lived here under the terms of this Proposed Draft.

I have far too much pride in, and on behalf, of the people of the Virgin Islands of all ancestry and color to do any such thing. For me, this is not just a legal argument; it is a civil rights issue. 

And I know on which side I stand: I stand with the vast majority of Virgin Islanders, both native and those who have chosen to become Virgin Islanders. I stand on the side of equality and equal opportunity.

Just imagine for a moment what any of us from these Islands would say if we went to live or work or study on the Mainland, and we were told we were second-class citizens unable to hold public office or that we were unequal in our rights. The 2008 Election of Barack Obama was to be a moment in our nation’s history that said those days were gone. I will not permit these days to return to our Virgin Islands, where we have long taken pride in our tolerance and respect for all.

And I would also note a further observation that is essentially a political observation. Although it is not relevant to our analysis of the law, all of the primary officials who undertook this review at my request which included, my Legal Counsel, my Chief of Staff, and the Attorney General -- are all Ancestral and Native Virgin Islanders under the definition of this Proposed Constitution. None of us would claim that this status permits us to operate above the law, or beyond the law on this subject, or any other. 

Moreover, I am not only unconvinced by the argument that such a "flawed" effort should be sent forward to be "cleaned up" by the President or Congress, I am offended by it. The drafting of a proper Virgin Islands Constitution should be done in the Virgin Islands, by Virgin Islanders. 

I would also note that the federal law gives Congress only sixty days to act by Joint Resolution or the Proposed Constitution will be deemed approved. Surely we cannot rely on Congress to stop considering healthcare reform, the financial and economic crisis, the wars in Iraq and Afghanistan, and the Nomination of the first Hispanic Supreme Court Justice to turn their attention to "cleaning up" the draft sent to them from the Virgin Islands. 

Also please remember that there is no cleaning up of the issue of the supremacy of the U.S. Constitution, there is no trading away of basic civil rights and protections. 

Perhaps if the Constitutional Convention had been willing, or able, to follow the course set by the Legislature in Act 6688, the problem that we now face might not have arisen. 

Had the Convention been able to act before the very last moment, before its deadline, perhaps I could have returned the draft to them for further action consistent with law.

I greatly wish to be able to forward a Proposed Constitution to the President which will go through the approved process and be returned to us as a document consistent with the U.S. Constitution and both federal and local laws so that the people of our Virgin Islands can vote for our own Constitution. We need to adopt a proper Virgin Islands Constitution. But those choices have been taken away from me by the actions of this current Convention.

Now it is up to all of us as a community to determine how we wish to correct this unfortunate reality and move ahead. I cannot uphold my oath of office if I ignore the legal opinion of the Attorney General. Because the Convention cannot legally take further action, as they have passed their deadline there, is nothing more that they can do under existing law. Only through legislation -- only by having and obeying a law -- can government act or can this or any other convention act. This is a matter that must first be resolved in the Legislature, but it is one in which I believe we must all take part. Now is the time for all to pay attention, get involved and take part. 

I stand ready to participate fully in whatever discussions and process we, as a community, conclude is the best way forward. I ask all in the Territory to reflect on those principles that keep us free, those principles that are the foundation of the American Democracy, those principles of equality and justice for all that make us both proud as Americans and proud as Virgin Islanders. 

We must collectively decide how best to get to the goal of a V.I. Constitution worthy of our past, but also designed for our future. The next chapter in our history must be written with all people of goodwill in the Territory taking part. Surely, we can do that together.

Thank you and I will now take any questions you may have.

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