The Purpose of a Constitutional Convention

Congress mandates that a U.S. territory that wants its own constitution must draft it via a constitutional convention elected independently of the territory’s legislature. On Nov. 3, 2020, USVI voters approved a referendum calling for a 6^th constitutional convention for USVI. In the wee hours of Dec. 29, 2022, USVI’s legislature approved an enabling act to elect delegates to the called convention. On Jan. 19, 2023, the Governor signed the enabling act into law.

The constitutional convention would propose a constitution. For it to take effect, it would then need to be approved by both the U.S. Government and the people of the Virgin Islands.

Congress mandates a constitutional convention for two reasons:

First, tradition. Since the early 19th Century, Congress has mandated that U.S. territories seeking to draft a constitution–usually but not always to seek statehood–draft the constitution via an independently elected constitutional convention.

Second, democratic accountability. According to democratic theory applied to constitutional design, the constituent power (the sovereign people) grants authority to the constituted powers (the various branches of government) via a written constitution. No constituted power, such as the legislature, should be granted control of the constitution making power because it would have an incentive to strengthen its own power at the expense of both competing constituted powers and the constituent power.

The constitutional convention fosters control by the constituent power because elected convention delegates aren’t constituted powers, as they immediately lose office after they have proposed a constitution. Constituted powers such as the legislature strongly prefer that they have proposal power over their own constitutional powers, which is why legislatures are the natural enemies of the convention method of constitutional change. The only exception is for an “anti-colonial” or first convention (the type USVI’s enabling act creates), which legislatures view as enhancing their own power because it transfers the constitutional amendment power from Congress to them.

The details in the enabling act are critical because for democratic accountability constitutional convention delegates must not only be elected but elected in a highly democratic way, which requires much more than merely having an election. But the legislature has a strong incentive to rig the enabling act to undermine the democratic function of a convention: to empower the constituent power rather than the constituted powers; that is, itself.

Alas, the U.S. Congress is ill-suited to preventing a territory’s constituted powers from abusing their constitutional convention enactment power. If the people want a democratically accountable convention process, they must demand it themselves.

The Legislature planned to amend the enabling act at a legislative session on March 15, 2023, but that session has been indefinitely postponed. As approved on Dec. 29, 2022 by the Legislature and Jan. 19, 2023, by the Governor, the enabling act had so many inconsistencies and blatant errors that it is impossible to actually implement, hence the need for a fix. The Legislature had 26 months to draft an enabling act and then screwed up with careless errors. This need for a fix presents the people with an opportunity to hold the Legislature’s feet to the fire so that the enabling act fulfills its democratic purpose. My March 27, 2023 Policy Brief suggests some potential fixes.

–J.H. Snider, Editor
USVI Constitutional Convention Clearinghouse
March 27, 2023

J.H. Snider Publications

Snider, J.H., USVI’s End-run Against America’s State Constitutional Tradition, Constitutional Conversations (a publication of the Center for Constitutional Design based at the Sandra Day O’Connor College of Law), June 7, 2023.

Snider, J.H., Policy Brief: Fixing USVI’s Constitutional Convention Enabling Act, USVI Constitutional Convention Clearinghouse, March 27, 2023. The accompanying news release can be found here.

Snider, J.H., Implementing the Constitutional Convention Voters Approved in 2020, The Virgin Islands Consortium, March 24, 2023.

Snider, J.H., Where a U.S. Territory Can’t Get Its Own Constitution: A Self-Serving Legislature Drives the Plot in a Story of Democratic Failure, Zocalo Public Square, March 2, 2023.

J.H. Snider’s presentation, Reforming the Process of Democratic Reform, at the Global Forum on Modern Direct Democracy, Mexico City, March 2, 2023.

Results of the Nov. 3, 2020 Referendum on
Whether To Call A Constitutional Convention

Source:  Official Results: Territorial Election Summary Results Report USVI General, November 3, 2020, Office of the Supervisor of Elections, Nov. 16, 2020,

Note: For details on convention call enabling act and the subsequent proposed convening enabling act, including, the rules for the election of delegates, see the menu item “Enabling Act.”

Major 6th Convention Government Milestones

May 5, 2020. Enabling act, Bill No. 33-0292, providing for a Nov. 3, 2020 referendum on whether to call a 6th constitutional convention.

June 29, 2020. Amended enabling act, Bill No. 33-0339, providing for a Nov. 3, 2020 referendum Nov. 3, 2020.

Nov. 3, 2020. Voters overwhelmingly approve referendum to call a USVI constitutional convention.

Jan. 11, 2021. The Legislature receives Senators Sarauw and Whitaker’s Bill No. 0153: An Act establishing the Sixth Constitutional Convention of the Virgin Islands.

Jan. 21, 2021. The Legislature assigns Senators Sarauw and Whitaker’s Bill No. 0153: An Act establishing the Sixth Constitutional Convention of the Virgin Islands.

Nov. 16, 2021. Senators Sarauw and Whitaker publicly release Bill No. 0153: An Act establishing the Sixth Constitutional Convention of the Virgin Islands.

Jan. 19, 2022. Hearing on Bill No. 34-0153, including the election of delegates, for the voter-approved constitutional convention. Invited testifiers only. Reported out to the Committee on Rules and Judiciary.

March 23, 2022. Hearing on Bill No. 34-0153, including the election of delegates, for the voter-approved constitutional convention. Invited testifiers only.

April 6, 2022. USVI Board of Elections approves dates of delegate election process, pending the legislature’s timely approval of its proposed enabling act. No written minutes of the meeting is created because there is a video recording of the meeting. However, the video recording of the meeting is only available internally to Board of Elections members and staff with proper credentials–unless the recording is requested under USVI’s Public Records Act to Board Chair Raymond Williams. Despite a Public Records Act request, the Board Chair refuses to provide a copy of the public documents discussed at the April 6, 2022 meeting.

May 10, 2022. Postponed hearing on the legislature’s proposed enabling act. Invited testifiers only.

May 16, 2022. Postponed hearing on the legislature’s proposed enabling act. Invited testifiers only.

May 17, 2022. USVI Board of Elections deadine, pending legislative action, for delegates to submit paperwork to appear on the ballot.

Nov. 8, 2022. USVI Board of Elections approved date for delegate elections.

Dec. 29, 2022. Hearing on the legislature’s proposed convention enabling act, Bill No. 34-0153. Invited testifiers only.

Dec. 30, 2022. Via a voice vote, the legislature unanimously approves amendment 34-740 to Bill No. 34-0153 shortly after 11:00 pm on Dec. 29, but it is recorded as being approved  on Dec. 30.  The legislature skips reading the amendment and then refuses, prior to the Governor’s signing of the enabling act on Jan. 19, 2023, to either post the amended bill on its website or make it available to those who request it. The refusal includes providing a copy of the amendment passed shortly before midnight on Dec. 29, 2022. As of Feb. 2, 2022, the text of the amendment still hadn’t been posted online or made available offline in response to numerous requests for it to the Governor’s Office, senators, and the legislative counsel.

Jan. 19, 2023. The Governor signs the convention enabling legislation, Act No. 8681, into law. As subsequently posted online.

Jan. 20, 2023. Governor’s transmittal letter to the legislature notifying all senators that he has signed Bill No. 0153 into law.

Jan. 23, 2023. Governor’s 2023 State of the Territory Speech doesn’t mention the 6th constitutional convention legislation he just signed.

Jan. 24, 2023. J.H. Snider writes to the Legislature’s leadership and the Governor alerting them to the inconsistencies and errors in their recently approved legislation that makes it impossible to implement.

April 28, 2023. Del. Stacey Plaskett, representing the U.S. Virgin Islands in Congress, introduces H.R.3026 – To provide for the adoption of the Revised Organic Act of the Virgin Islands as the constitution of the United States Virgin Islands. All congressional actions on the bill can be found here.  Plaskett issued a press release announcing the bill’s introduction, including statements of support from USVI scholars. See PLASKETT INTRODUCES LEGISLATION TO ADOPT THE REVISED ORGANIC ACT AND ITS AMENDMENTS AS THE VIRGIN ISLANDS CONSTITUTION. The bill is a clever run around of the Act No. 8681 morass. If Congress passed it, it would clean up that morass. But it would also break more than 150 years of Congressional precedent regarding granting new territories a constitution of their own. That has traditionally required an independent constitutional convention, where the people, not the territorial legislature, is granted control of the amendment process.

May 4, 2023. Election System of the Virgin Islands promotes and then hosts “The Great Debate”. The question for debate is: “The Virgin Islands needs to ratify a constitution before defining its continued relationship with the United States of America.” The debate organizers were all government officials and framed the debate based on the assumptions USVI’s legislature has made in promoting a constitution.

July 20, 2023. The Legislature passes Bill No. 35-0035 (Act No. 8734), “An Act amending title 20 Virgin Islands Code, part II, chapter 39, section 436(b), by expanding the definition of “disabled veteran” for the purposes of eligibility for a disabled window decal, making various appropriations and amending Act No. 8681.” Section IV amends Act No. 8681. The Legislature’s strategy was apparently to fix their embarrassing errors under the public radar and with as little public debate as possible. Part of this strategy was to on Feb. 27, 2023 introduce a totally unrelated bill on veterans’ benefits and then, on July 20, 2023, just before the final vote on it, amend it with totally unrelated amendments and without any advance public notice. This strategy appears to have been successful, as the first press report does not show up until August 13, 2023, and the reporter seems to have been so embarrassed at missing the story that she didn’t include in her story the bill number and date of passage concerning the legislation she was writing about. But kudos to her for eventually finding the story and recognizing that what the Legislature attempted to sweep under the rug was in fact highly newsworthy. Also, the two legislative staffers responsible for these amendments promised me multiple times to give me a heads up on the date when their bosses would hold a public meeting to fix the flawed legislation they passed on Dec. 30, 2022. This repeated promise to me they broke. The two staffers are Shawna K. Richards, Chief of Staff, Office of Sen. Novelle E. Francis, Jr., and Jada M. Lark, Chief of Staff, Senator Alma Francis Heyliger.

Nov. 5, 2024. Election for constitutional convention delegates.

Jan. 27, 2025. Constitutional convention convenes.

Oct. 25, 2025. Deadline for constitutional convention to propose a constitution.

Nov. 4, 2025. Ratification referendum for the proposed constitution.

March 31, 2027. If the proposed constitution is ratified, this is the date it would come into effect.

Key Federal Documents

September 17, 1789. The U.S. Constitution included the following vague statement (Article IV, Section 3, Clause 2) about admitting new states:

New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. 

The key rules for admitting new states, including how they must draft their constitutions, have been settled by congressional and court actions. Many key rules are based on precedent rather than clearly stated policies.

July 22, 1954. Congress passes the Organic Act of 1954.  Amended many times since (see the Revised Organic Act of 1954), this Act has served as USVI’s fundamental law since 1954. It is currently 105 pages long. A Constitution would replace it. An annotated and more accessible version of the Revised Organic Act was published in 2021 by a team of scholars working out of the University of the Virgin Islands.

October 21, 1976. Congress passes Pub.L. 94–584 authorizing the people of the United States Virgin Islands to organize a government pursuant to a constitution. The required mechanism for drafting a constituton is a “constitutional convention.”

The Legislatures of the Virgin Islands and Guam, respectively, are authorized to call constitutional conventions to draft within the existing territorial-Federal relationship, constitutions for the local self-government of the people of the Virgin Islands and Guam.

This law is much vaguer than it might appear from a superficial reading. Notably, the term “constitutional convention” is not clearly defined. In the context of new state formation, it has generally been interpreted to mean a body made up of delegates elected separately from a state’s legislature that proposes a constitution for approval by both Congress and a territory’s electorate.

Other Federal Documents

U.S. Insular Areas: Applicability of Relevant Provisions of the U.S. Constitution, United States General Accounting Office, GAO/HRD-91-18, June 1991.