Thursday, April 15, 2010
The Office of Legal Counsel recently posted a memorandum identifying some problems with the proposed constitution of the U.S. Virgin Islands. The memo, dated February 23, 2010, is the first that the OLC posted in 2010.
The USVI is an unincorporated territory of the United States. A 1976 Act of Congress permits the USVI to propose a constitution for the Islands, which must (1) "recognize, and be consistent with, the sovereignty of the United States over the Virgin Islands . . . and the supremacy of the provisions of the Constitution, treatises, and laws of the United States applicable to the Virgin Islands," (2) "provide for a republican form of government, consisting of three branches: executive, legislative, and judicial," (3) "contain a bill of rights," (4) "deal with the subject matter of" provisions of the Organic Act and Revised Organic Act that "relate to local self-government," and (5) provide for a system of local courts.
Under federal law, the governor of the USVI must submit a proposed constitution to the President (which he did on December 31, 2009). The President then transmits the constitution, with comments, to Congress, which may approve, modify, or amend the constitution by joint resolution. The constitution, as amended, then goes back to the USVI for referendum.
Since 1976, two proposed constitutions failed at the referendum stage. This most recent proposal grows out of a constitutional convention that ended in May 2009.
The OLC identified three primary concerns with the proposal:
1. Property tax exemptions, office-holding, and voting rights based on place and date of birth, length of residence, and ancestry violate the Fourteenth Amendment Equal Protection Clause (extended to the USVI by statute). OLC opined that the property tax exemption, which exempts property owned by USVI residents born before 1932 and their descendents violates equal protection, because there is no clear "legitimate governmental purpose that would be rationally advanced by providing property tax exemptions only for this class." It further opined that the proposal's restrictions on holding certain offices and voting in certain elections to those born in the USVI violate equal protection: This looks an awful lot like unconstitutional durational residency requirements, and it, too, lacks a legitimate governmental interest.
2. Ten- and fifteen-year residency requirements for the offices of governor, lieutenant governor, and judge also raise equal protection concerns under rational basis review.
3. The section on management of territorial waters, which gives exclusive authority to the government of the USVI, derogates from the sovereignty of the United States over those waters and is therefore inconsistent with federal law.
The OLC discussed other provisions of the proposal as well and made some minor recommendations, but it found no other serious problems.