VI Proposed Constititution ( Fifth Constitutional Convention) FACT & FICTION By Gerard Emanuel
5th V.I. CONSTITUTION FACT AND FICTION
June 19, 2009
Recent community discussions and several letters to the editor are perpetuating gross misconceptions
about the 5th draft constitution. We are compelled to respond since some have assumed the awesome
task of determining the legislative intent of the delegates who voted for the document. Few of these
persons have attended any meetings, or had the courtesy to request statements from the delegates who
voted for the document. Some have probably not even read it and base their comments on what others
have told them. One of the best ways to enslave a people is to keep them dependent on you for what
and how to think. Thus when factual and legal information have been provided, it has been summarily
dismissed because of its disillusioning yet valid quality, just as was the case in the ―Allegory of the
Cave‖, which has been attributed to Plato. It has also been said that if a lie is repeated often enough
without constructive and consistent opposition, it will be believed.
Additionally, all kind of pejorative comments have been lodged at the convention for months while we
worked with severely limited resources. We will not respond in like mode. The attackers have the
democratic right to present their views. We respectfully disagree with them, for, it is apparent that their
principal arguments are based on a one-sided and incomplete set of legal precedents, most of which are
not analogous to the facts or historical experience in the V.I. We have utilized precedents to justify the
provisions in the constitution, which meet the above standards. We are all free to disagree, but please
do so from an informed position that objectively considers the legal and historical precedents that we
have utilized, as well as the alarming social trends in the V.I.
Since no one has officially requested that the constitutional convention provide clarification of these
misconceptions, or state the legislative intent for provisions in the document, the following is a cursory
presentation of five common misconceptions and their corresponding facts from my limited
1. The 5th Constitution does not recognize the supremacy of the Constitution, treaties and laws of
the U.S.A. Even if it does, it does so only implicitly. However, the 4th Constitution did.
1. The Constitution *―explicitly‖ recognizes the full sovereignty of the United States over the
V.I. and also the supremacy of the Constitution, treaties and laws of the U.S.A. in the preamble
when it states the following:
―…assuming the responsibilities of self-government as an unincorporated territory of
the United States,…‖.
Anyone who really understands the significance of stating that the V.I. is an unincorporated
territory of the U.S., must simultaneously recognize the import of positioning this statement in
the first paragraph of a constitution, and also would not question that it is an explicit
acknowledgement of complete U.S. sovereignty over the V.I. Senator Lowell Weicker, who
chaired the committee that reviewed the 4th Constitution, also recognized this statement as an
*―explicit‖, not ―implicit‖ recognition of full U.S. Sovereignty over the V.I. in all areas.
*Below are his exact words with respect to this issue.
―I understand the words "unincorporated territory" as used in the Revised Organic Act for the
Virgin Islands as an explicit statement of the sovereignty of the United States over the area
acquired from Denmark and makes the area subject to the plenary authority of Congress under
Article 4, the supremacy of Federal law and the sovereignty of the United States.‖
(*This citation is from an exchange between Senator Lowell Weicker, Chairman of the Senate’s
Energy and Natural Resources Committee, and Attorney Herman Marcuse, from the Office of Legal
Counsel in the U.S. Department of Justice, who raised the concern about the lack of acknowledgement of
U.S. Sovereignty in the 4th Draft Constitution when it was discussed as part of S. 1674, 97th Congress on
Nowhere in the 4th Constitution is it expressly stated that ―the V.I. recognizes the supremacy of the
Constitution, treaties and laws of the United States.‖ It also does not state that the V.I. is an
Unincorporated Territory as is the case in the current 5th Constitution. It merely states that
―…To the extent not inconsistent with the Constitution and laws of the United States,…‖
the V.I. Constitution is the supreme law of the V.I. However, Congress accepted the language of the
fourth Constitution with this omission, notwithstanding the concerns of the Department of Justice due
to the acknowledgement of unincorporated territorial status in the Organic Act.
Thus the Honorable Senator’s official statement strongly supports the position that stating that the V.I.
is an Unincorporated Territory of the U.S., is a sufficient and an ―explicit‖ recognition of U.S.
Sovereignty over the V.I.
Only Ancestral Native and Native Virgin Islanders can vote on amendments to the 5th V.I.
The 5th Constitution allows every registered voter to participate in all elections on amendments to
ARTICLE XVIII, Section 7 of the 5th V.I. Constitution reads as follows:
―Each proposed amendment to this Constitution shall be submitted to the electors of the Virgin
Islands for ratification at the first regular general election or at a special election called by the
Senate. Ancestral and Native Virgin Islanders, including those who reside outside of the Virgin
Islands or in the military, shall have the opportunity to vote on Constitutional Amendments.”
The above does not prevent any registered voter from voting on amendments, or restrict the
franchise in any manner. It clearly indicates that each amendment “shall”, not “may” be
submitted to the electors for ratification. In sum, the language expands and does not restrict the
Children of parents who are not born in the Virgin Islands are not Native Virgin Islanders. No
White person can be an Ancestral Native Virgin Islander.
You are a V.I. Native if you were born in the V.I. regardless of who your parents are, or where they
were born. You are also a Native according to ARTICLE III, Section 2(b), if you are descended
from a person who was born in the V.I.
Can a white person be an Ancestral Native Virgin Islander? Yes! ARTICLE III, Section 1(a)
states that an Ancestral Native Virgin Islander is:
“a person born or domiciled in the Virgin Islands prior to and including June 28, 1932 and not
a citizen of a foreign country pursuant to 8 U.S.C. 1406 in its pertinent part, and his/her
To be an Ancestral Native does not depend on race. The fundamental criteria are clear. You were
either born or domiciled in the V.I. on or before June 28, 1932, and you were not a citizen of a
foreign country at the time, or you are descended from someone who meets the above criteria.
There is no reference to race in the definition. The three key criteria are nativity, domicile
and lack of citizenship in a foreign country. In fact the definition adopted by the convention is
more inclusive than the federal law on which it is based. The federal law only referred to
natives, which would have meant only persons who were born in the V.I. The convention
expanded the definition, (based on the suggestion of delegate Adelbert Bryan), to include persons
who were not born here but were domiciled here at the time, and who met the other criteria. This
change included persons from any former or current British Caribbean island, as well as those from
the Spanish, Dutch and French islands who could meet the other criteria. It also included White
persons or any other citizen of a foreign country who was domiciled in the V.I. in 1917 and legally
renounced his or her citizenship before the 1927 U.S. Citizenship Act was passed. All of these
persons are Ancestral Natives.
Furthermore, the children of any persons who did not renounce their citizenship in a foreign
country are Ancestral Natives if one of their parents is an Ancestral Native. Therefore it is clear
that the definition is considerably more inclusive than the interpretations circulating in the
Allowing St. Johnians to elect their own district senator in the constitution can be attacked as a
violation of the ―one man, one vote principle.
Notwithstanding the one man, one vote requirement, the 3rd and 4th Constitutions also provided
a district senator for St. John. Both constitutions were also approved by Congress. The
Section-by-Section Analysis of the 3rd Constitution contains the legal justification prepared by
the legal consultants to the Convention on April 20, 1978. (See pp. 20-23.) Furthermore, the chief
legal counsel to the 5th Constitutional Convention had no problem with this provision based on
his research. Apparently the courts do not force states to adhere to the strict mathematical
formulas when creating districts.
Both Reynolds v. Sims and Swann v. Adams, allow for exceptions to the ―one man, one vote principle,
if they are ―confined to minor variations which "are based on legitimate considerations incident to the
effectuation of a rational state policy." (Reynolds v. Sims, supra, at 377 U. S. 579). or if they are
―…nondiscriminatory and justified by state policy considerations such as integrity of political
subdivisions, maintenance of compactness and contiguity in legislative districts, or recognition of
natural or historical boundary lines.‖ (Swann v. Adams, 385 U. S. 440, 444).
Although the population difference between St. John and the other two main islands may not be
considered as minor according to the strict mathematical requirements, this is not the only criterion.
Strong arguments for St. John having its own senator can be based on the other considerations
indicated by the Supreme Court above. These justify such a policy if it is ―nondiscriminatory and
justified by state policy considerations such as integrity of political subdivisions, maintenance of
compactness and contiguity in legislative districts, or recognition of natural or historical boundary
Furthermore, even a District Court Judge in the V.I. made a profound statement indirectly in support of
St. John having a senator. (See Markoe v. Legislature (D.C.V.I. Civ. No. 77-78, March 8, 1978, which is also found
on p.22 of the Section-by-Section Analysis of the 3rd Constitution)
The fact is that granting St. John its own senator has a legal precedent in on our history. It can also be
again justified based on geography and other circumstances peculiar to the Virgin Islands.
Certain provisions granting privileges only to Ancestral Native and/or Native Virgin Islanders are
based on revenge, hate, reverse racism, xenophobia, are unconstitutional, clearly violate the 14th
Amendment of the U.S. Constitution as well as provisions of the enabling legislation that the
convention was mandated to follow.
Some provisions in the 5th proposed constitution may appear to be discriminatory on the surface, based
purely on a review of a certain set of court cases that have addressed the application of the 14th
Amendment to citizens who are similarly situated in states. The 5th Constitution’s provisions are
definitely not based on hatred or any negative feelings toward others. They are based on accurate
historical facts and well established case law designed to fairly address and redress past discrimination,
and to serve compelling state interests such as diversity, which was recently upheld by the Supreme
Court in one of its affirmative action cases. However, the fact is that the V.I. is not a state, nor an
Incorporated Territory. It is an Unincorporated Territory. Hence court cases applicable to states or to
incorporated areas such as Washington D.C., do not always apply to unincorporated areas, since the
full U.S. Constitution is not extended in these ―possessions‖, and since they are considered ―foreign in
a domestic sense‖. (See Downes v. Bidwell. This Supreme Court case conclusively established that the Constitution
does not follow the flag in unincorporated possessions, and that the uniformity clause was inapplicable to Puerto Rico.
Subsequent cases on constitutional issues have upheld the basis for this ruling in the V.I. and in other unincorporated areas -
i.e. the Krim Ballentine case.)
Only Congress determines which parts of the Constitution are applicable and the courts interpret the
nature and extent of this applicability in unincorporated territories. (See the Insular Cases and Wabol v.
Villacrusis, 1992.) Secondly, a solid case can be made that V.I. natives are not similarly situated with
immigrants to the territory, whether these immigrants are U.S. Citizens by birth in a state, or by
naturalization. The U.S. citizenship for all non-natives, (who are not born in another unincorporated
territory), is fully granted and guaranteed by the U.S. Constitution. Contrastingly, the U.S. Citizenship
of V.I. Natives is neither granted nor guaranteed by the Constitution. It is very tenuously based merely
on Congressional Acts, which can and have been changed several times. (See the 1927, and 1940 U.S.
Nationality Acts, and also Public Law 95-134, and Public Law 95-135.)
Even the attorneys from the Departments of Justice and Interior, who reviewed the 4th Constitution,
saw that V.I. natives were not similarly situated with immigrants to the V.I. in this singular but
significant area. These legal experts considered the difference so critical and disparaging toward V.I.
Natives that both were compelled to provide statements to remedy this lack of equal protection of the
laws for natives when they appeared before the Senate’s Energy and Natural Resources Committee in
Washington. They both argued that V.I. natives should have their U.S. Citizenship guaranteed by the
14th amendment. The following statement is by Herman Marcuse, but Diane Morales also strongly
urged the same.
―We urge the inclusion of the entire first section of the Fourteenth Amendment in Section 3.
This would put the citizenship of persons born in the Virgin Islands on a constitutional, and
therefore permanent foundation rather than on the statutory basis of Section 306 of the
Immigration and Naturality Act (8 U.S.C. Section 1406), which can be repealed by Congress.
It will be remembered that in 1977 the applicability of that act to the Territories came very
close to being repealed, or at least, suspended. See section 403 of Public Law 95-134, as
amended by Public Law 95-135.‖
The above makes it clear that in this respect, V.I. Natives are not similarly situated with non native
U.S. Citizens. However, this is not the only basis for contending that V.I. Natives are not similarly
situated with immigrants to the V.I. The history of governmental or ―legal‖ discrimination against
natives under U.S. rule and even under Danish rule, both provide another basis for this distinction.
Furthermore, according to the manner in which the equal protection clause of the 14th Amendment is to
be applied, V.I. natives must be guaranteed different treatment to others who are not similarly situated.
The basis for this comes in part from the citation below, but it is a principle that is ubiquitous and thus
well established in U.S. law. The equal protection clause is not supposed to be applied equally to all
persons or groups in all circumstances. There are clear standards to be followed.
―The Clause in essence guarantees that people who are similarly situated will be treated
similarly. The Equal Protection Clause also guarantees that people who are not similarly
situated will not be treated similarly.‖
In the V.I., the second guarantee of the 14th amendment’s equal protection clause indicated above
should be applied in favor of natives. This has been lacking since the purchase of these islands by the
U.S. and before. Constitutional delegates regarded it as a fact that natives were not similarly situated
with other members of the V.I. population. That provides the philosophical and legal basis for the
insertion of some of the provisions in the constitution that are being contested. Therefore the persons
in the V.I. whose right to equal protection has been historically, deliberately and consistently violated
here, are the Ancestral Native Virgin Islanders. THAT IS A FACT!!! Natives deserve justice. The
fact is that there can and never will be true and lasting peace and unity in the V.I. without first
satisfying the pre-condition of justice for the Natives. Until all of our fellow citizens realize and
respect the need for this, we will always have problems here. It must be remembered that
EVERYONE HAS THE RIGHT TO EQUAL PROTECTION – NOT MERELY NON-NATIVES.
Furthermore, even in states where the full U.S. Constitution applies at all times, the U.S. Supreme
Court has upheld dissimilar treatment of groups based on the need to correct past discrimination, or
more recently to promote future goals such as diversity. Both of these goals form the basis of the
language in the 5th constitutional draft, which has been deemed unconstitutional, or as not meeting the
requirements of the enabling legislation. In the U.S., when the 14th amendment is applied in this
manner, it has been called affirmative action. Examples of this can be found in both the U.S.
Constitution and in at least two constitutions of unincorporated territories. (See the 13th-15th, the 19th & the
23rd amendments, and provisions in the constitutions of American Samoa and the Northern Marianas regarding land
Even though the basis for this application of the 14th Amendment in the V.I. is not based on race as is
the case with Native Americans or the Chamorro, race can be used as a factor to serve the compelling
state interests that were contemplated in the legislative intent by the drafters of the 5th Constitution.
(See the Supreme Court case of Grutter v. Bollinger, 2003)
Also in Adarand Constructors v. Peña (1995), the majority of the court ruled that affirmative
action programs were constitutional provided they were ―narrowly tailored‖ to serve a ―compelling
government interest.‖ The provisions in the 5th constitutional draft were placed there to serve
precisely the purposes that the courts have upheld, but no one bothered to ask the constitutional
convention what compelling state interests were being served, or what their legislative intent was.
They just assumed.
―In Smith v. University of Washington (2000) a federal appeals court upheld an affirmative
action program at the University of Washington Law School, concluding that diversity in
education was a compelling state interest‖, even though race preferences are illegal in the State
Thus even in cases where state law conflicts with affirmative action, the courts have upheld the
latter. Therefore, since diversity in housing communities is one component of the compelling state
interest in the V.I., it is entirely plausible that the provisions in the constitution designed to
promote this interest may be upheld by Congress and the courts when viewed in proper
In Ward’s Cove Packing Company v. Antonio (1989), the Supreme Court upheld hiring practices even
though employees could clearly show that they led to racial disparities. The court considered the
practices ―legal if they served ―legitimate employment goals of the employer.‖
In Fullilove v. Klutznick (1980), the Court upheld a provision of the Public Works Employment Act of
1977, which provided a 10 percent ―set-aside‖ for hiring minority contractors.
So we see that the Supreme Court has upheld a wide array of affirmative action policies and practices
over the years when an important governmental interest is being served, even if they seem to adversely
affect persons based on race.
Contrastingly, in Griggs v. Duke Power (1971), the Supreme Court concluded that the subtle, illegal,
purpose of some employment requirements was to safeguard Duke's long-standing policy of giving job
preferences to its white employees and struck them down. Any honest assessment of the basis for the
language in the constitution will conclude that it was not to merely give preferences to natives. It is
clearly designed to correct past discrimination, preserve our dying traditional culture, protect our
territorial and demographic integrity and to promote diversity.
Contrastingly, while in the V.I., the U.S. Immigration laws and the free market system also have no
such subtle or illegal purposes targeted against natives, they unwittingly encourage and facilitate
uneven and unfair competition for land, due to the in-migration of wealthy persons from the U.S. and
elsewhere, who build extravagantly-priced homes and drive up property values. This makes it cost
prohibitive for natives to afford to purchase property, build homes and pay property taxes wherever
they choose in their homeland. This is in direct violation of the government’s interest of creating
diversity in certain communities throughout the islands, as well as a violation of the right of natives to
the equal protection of the laws. The end result is that many natives cannot realize the American
dream of owning a home where they choose in their homeland. This further encourages racial, class
and ethnic apartheid, which may be why some opponents of the constitution wanted sub-districting. It
would legally allow them to more easily execute the gentrification initiatives that have been occurring
here ever since the real estate boom of the 1960’s, and which seem to be increasing now. Are we
saying that natives are only to live in certain parts of the islands?
Thus if natives do not have to pay property taxes on their primary residence, this will facilitate the
construction of their homes in communities heretofore restricted only to the rich, and may also prevent
them from losing their homes and other property they are holding for their children and other relatives,
due to tax increases unintentionally caused by others. It will also assist in discouraging them from
leaving the territory due to the high cost of living here. Whenever a native leaves the territory for
good, a part of the culture leaves as well.
Additionally, due to the small size of the V.I., the electorate, is particularly susceptible to influence and
outnumbering by the influx of U.S. Citizens. Recently, some have been threatening to vote against any
initiatives for natives. The delegates have seen that this trend of demographic disruption is increasing,
and threatens to thwart any attempts of natives to make decisions in their political interest. All one has
to do is listen to the talk shows or read the letters to the editor for corroboration of this. The alternative
or compromise to restricting immigration, is to reserve the top two elected positions in the territory for
the actual and potential bearers of the culture, who are the natives. If this is wrong, then no one has
offered a viable alternative to the inevitable extinction of ancestral natives in their homeland. If it is
wrong to provide mechanisms for their survival, then it is also equally wrong to allow the status-quo,
which is inevitably leading to their extinction, or complete marginalization in their homeland. We
have all kind of laws to protect native animals such as lizards and turtles. We even make special
provisions to protect them from their predators. Why is it so reprehensible to do likewise for native
The delegates took it as a given that there exist divergent group rights in this community. They sought
to balance these competing rights and interests of natives and immigrants, in the document by
providing several affirmative action provisions for natives on the one hand, and providing for local
government, sub-districting and other provisions that addressed the principal concerns of immigrants,
such as reducing the threshold for initiative, referendum and recall, providing a commission to set the
salaries of elected officials, and providing for greater transparency of legislative bill drafts and other
records, on the other hand. Furthermore, the delegates also provided language to protect the right of
any person who feels discriminated against by any provision in the constitution. Some persons feel
discriminated against by sub-districting. Others feel discriminated against by native rights. We had no
choice but to make provision for both sets of conflicting rights. The first section of the Bill of Rights
provides the right to immediate redress in case a constitutional provision is not sufficiently narrowly
tailored, or is ruled as being clearly discriminatory. (See the last sentence of ARTICLE 1, Section 1
Additionally, more relevant court cases regarding the 14th amendment’s application are found in other
unincorporated U.S. Territories such as Guam, American Samoa, Puerto Rico and the Northern
Marianas. Some of these areas have court cases that are more relevant to the situation in the V.I. than
those in states, which are commonly cited as 14th amendment cases, because they involve possessions
where Congress, pursuant to ARTICLE IV, Section 3, Clause 2 of the U.S. Constitution, has plenary
authority. This gives it considerable flexibility and latitude in addressing the peculiar needs and issues
of the native peoples in unincorporated territories as has been done for the Native peoples in states. So
even though I have clearly provided a basis from Supreme Court cases for the affirmative action
provisions in the 5th constitution, there are other court cases that are more directly relevant to the V.I.
For example, there are several cases in Unincorporated Territories where providing certain rights only
to natives, such as land ownership, were upheld locally, and in at least one case upheld in federal
courts in the 9th Circuit. (See Wabol v. Villacrusis, 1992).
Another case that upheld a constitutional provision that restricts landownership to natives, is Craddick,
v. Territorial Registrar of American Samoa, 1980)
Dr. Stanley K. Laughlin, an expert in the field of the application of the U.S. Constitution to
constitutions and laws in unincorporated territories, stated the following about cases where local
constitutions have provisions that reserve certain privileges for natives:
―At least two federal CIRCUIT COURTS—in King v. Morton (1975) and Wabol v. Villacrusis (1992)—
have adopted a rule of construction which holds that in any given case there is a presumption that the
Constitution applies. However, that presumption can be rebutted by proof that a particular application
is "impractical" (i.e., that it would not work because of cultural differences) or that it would be
"anomalous" (i.e., that it would be destructive of the indigenous culture).‖
In the V.I. there exists a plethora of evidence for both of the above principles. Ancestral Natives are
being forced to leave the V.I., and with them goes much of their traditional culture. The more that they
are forced to leave, other persons enter, replacing them with cultural elements that are frequently in
direct opposition to the values held dear by Ancestral Natives. A good example is the glorification of
pirates and piracy that was witnessed in a function for children that was held either last year or early
this year on St. Thomas. The organizers even went as far as placing a face of President Obama on a
pirate’s costume. To me and to most ancestral natives this is not even funny. It is downright
disrespectful to the President and to our cultural values. Another practice that has been particularly
injurious to our culture, which is becoming more pervasive, is referring to persons, regardless of age
by their first name. This is a North American practice that has taken over here, and though it may
seem trivial, it has played a pivotal role in the loss of respect for elders and persons in authority here.
The more that natives are forced to leave due to the high cost of living, the more those things will
The V.I. has a clear compelling state interest in preserving the positive, socially cohesive and other
functional aspects of its traditional culture. It is one of the bases for its tourism-based economy. It is
also necessary to correct some of the serious social ills facing our community. These points on their
own, should have been sufficient to invalidate or at least question the validity of the position that
provisions for the protection and maintenance of natives in the 5th constitutional draft, were clearly
inconsistent with the enabling legislation or unconstitutional.
Each ―contestable‖ provision in the 5th Constitution should have also been evaluated based on the
A. A thorough review of and application of relevant and analogous legal precedents to the
particular facts that support the inclusion of such language,
B. the historical evidence of past and present legal governmental discrimination in the V.I.,
C. the relevance and validity of the compelling state interests being served, and,
D. the extent to which the language actually serves these interests, and
E. whether there exists an equally effective and more acceptable mechanism to achieve the same
The above was only a layman’s cursory survey of cases and principles, which at best prove that the 5th
constitution’s provisions can be constitutional in an Unincorporated Territory, if one accepts the ―rule
of construction‖ that has been used by the courts in the analogous situations indicated by Dr. Laughlin,
or at worst cast considerable doubt on the contention that these provisions are in violation of either the
U.S. Constitution or of the enabling legislation, because of the existence of past precedents in other
unincorporated areas, and the fact that V.I. natives are not similarly situated with immigrants to the
V.I. Thank you!
Gerard M. Emanuel