USVI rightfully wants its own territorial constitution. To win one, Congress mandates that any U.S. territory must propose one via a constitutional convention elected independently of the territory’s legislature. The democratic rationale for this process is that a legislature would have a conflict of interest designing its own powers, hence the need for an independently elected body to design its powers.
Alas, for more than sixty years USVI’s Legislature has sought to win constitutional amendment power for itself by undermining the independence of the constitutional convention process. In its first two attempts, it even granted explicit veto power to itself–an absolute no-no for Congress, although Congress was too polite to say so.
On Nov. 3, 2020, USVI voters approved a referendum calling for a 6th constitutional convention for USVI. In the wee hours of Dec. 29, 2022, USVI’s Legislature approved an enabling act to elect delegates to the 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 drafting constitutions, 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 the legislature.
The details in the enabling act are critical for democratic accountability. It is not enough for delegates to merely be elected. They must be elected in a genuinely independent and highly democratic process, and the convention itself must also be similarly independent and democratic. Alas, USVI’s Legislature has had a strong incentive to rig the enabling act to undermine the democratic function of a convention: to empower itself and its allies rather than the constituent power. If the people want a democratically accountable convention process, they must demand it themselves, something USVI’s people and press have never done in a timely way.
The Legislature planned to amend its unworkable enabling act at a legislative session on March 15, 2023, but that session was 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 was 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 could have presented the people with an opportunity to hold the Legislature’s feet to the fire so that the enabling act fulfills its democratic purpose. Instead, on July 20, 2023 the Legislature snuck in a fix as a last-minute rider to a completely unrelated bill on veterans’ benefits. There was no public hearing or public debate in the press. The first press coverage of this change was more than three weeks after it passed–and with no reasonable explanation in that coverage for either the press’s delay or its extent.
The delegate election is now scheduled for November 2024.
It’s a mystery to me why the people of USVI and its press have treated its upcoming constitutional convention as a trivial matter. As the delegate election nears, that will surely change. But the Legislature’s awful enabling act has already passed–and without anything resembling serious public deliberation–which I believe has set in motion yet another highly anti-democratic constitutional convention process for USVI.
There is a saying: fool me once, shame on you; fool me twice, shame on me. USVI’s legislature is on its 6th fooling.