Department of Justice Views on the Constitution Adopted by

the Constitutional Convention of the Virgin Islands

[The follow ing m em orandum , initially drafted in the O ffice o f Legal C ounsel at the 

request o f the A ssistant A tto rn ey G eneral for L egislative A ffairs, presents the D e p a rtm ent o f Justice's view s on certain provisions o f the co nstitution adopted by the 1980 

constitutional convention o f the V irgin Islands. T his co nstitution w as app ro v ed by 

C ongress for subm ission to the people o f the V irgin Islands by Pub. L. N o. 97-21, 95 

Stat. 105 (1981), but was subsequently rejected in a referendum . A s o f the d ate o f 

publication o f this volum e, the V irgin Islands do not have a constitution. T h e follow ing 

analysis o f the provisions o f the rejected constitution discusses im portant and recu rrin g 

constitutional and legal issues arising in the context o f federal-territorial relations.]

September 9, 1980

MEMORANDUM OPINION FOR TH E DIRECTOR, 

OFFICE OF MANAGEMENT AND BUDGET

This responds to your request for the views of the Department of 

Justice on the constitution adopted by the constitutional convention of 

the Virgin Islands on July 31, 1980.

Section 2(a) of the Act of October 21, 1976, Pub. L. No. 94-584, 90 

Stat. 2899, 48 U.S.C. preceding § 1541 (“Enabling Act”), authorized the 

legislature of the Virgin Islands to call a constitutional convention to 

draft a constitution for the local self-government of the people of the 

Virgin Islands within the existing territorial-federal relationship. Section 

2(b) of the Act provided that such constitution shall: (1) recognize and 

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, iifcluding the provisions 

of the Organic Act of 1936 of the Virgin Islands and the Revised 

Organic Act of the Virgin Islands of 1954 which do not relate to local 

self-government; (2) provide for a republican form of government, 

consisting of three branches; (3) contain a bill of rights; (4) deal with 

the subject of those provisions of the Revised Organic Act of the 

Virgin Islands of 1954, as amended, which relate to local selfgovernment; and (5) provide for a system of local courts consistent 

with the provisions of the Revised Organic Act of the Virgin Islands, 

as amended.

Sections 4 and 5 of the Enabling Act provide that the constitutional 

convention shall submit to the Governor of the Virgin Islands a

759
proposed constitution which shall comply with the requirements of 

§ 2(b). The Governor in turn shall submit the constitution to the President of the United States, who shall transmit it to Congress within 60 

calendar days together with his comments. The constitution shall be 

“deemed approved” by Congress within 60 days after its transmittal by 

the President, unless prior to that date Congress, by Joint Resolution 

subject to the approval of the President, has approved, modified, or 

amended it. The draft constitution as approved or modified by Congress shall then be submitted to the qualified voters of the Virgin 

Islands in a referendum for acceptance or rejection.

I. Recognition of the Sovereignty of the United States and Supremacy of

the Constitution and Laws of the United States

In contrast to the 1978 constitution,1 this constitution does not expressly comply with the requirement of § 2(b)(1) of the Enabling Act 

that it recognize the sovereignty of the United States and the supremacy of its Constitution and of those of its laws that are applicable to the 

Virgin Islands. Indeed, Article V, § 1 of the constitution refers to the 

supremacy of the constitution of the Virgin Islands and of the laws 

enacted under it without any reference to the supremacy of the Constitution and laws of the United States.

If the Enabling Act did not contain this express requirement, the 

failure of the constitution to recognize the sovereignty of the United 

States and the supremacy of its Constitution and laws would not have 

any substantial legal consequences because they are implied in the 

Organic Act and flow from the territorial relationship. Indeed, few if 

any state constitutions specifically refer to the sovereignty of the 

United States or the supremacy of its Constitution and laws. The same 

is true of the recently adopted constitution of the Northern Mariana 

Islands.

Moreover, the preamble to the constitution declares that the Virgin 

Islands assume “the responsibilities of self-government in political union 

with the United States”; in the draft official analysis of the constitution,2 the comments on the preamble contain the statement in “accordance with section 2(b) of U.S. Public Law 94-584 (October 21, 1976) 

[the Enabling Act] recognition is given to the sovereignty of the United 

States over the Virgin Islands”; and finally, Article V, § 1 of the 

constitution provides that the legislative power of the Virgin Islands 

“shall extend to all subjects . . . consistent with . . . the Constitution 

and laws of the United States applicable to the Virgin Islands.” During 

the Senate hearings on the 1978 Guam constitution,3 which also failed

1 T he constitution adopted by the 1978 constitutional convention of the Virgin Islands was “deemed 

approved” by Congress but was defeated in the referendum.

2 We have not as yet received the final text o f those com m ents as approved by the constitutional 

convention.

3 T he 1978 G uam constitution was also defeated in a referendum.

760
to recognize expressly the sovereignty of the United States and the 

supremacy of its Constitution and laws, the Department of the Interior 

and the Department of Justice concluded that analogous provisions in 

the Guam constitution and its official analysis constituted at least substantial compliance with § 2(b)(1) of the Enabling Act.4 In particular, 

the Department of Justice took the position that, as the result of nearly 

200 years of history, the term “political union with the United States” 

necessarily carries with it recognition of the sovereignty of the United 

States and the supremacy of its laws.5 The Department of the Interior 

indicated that the definition of the legislative power of Guam carried 

with it the recognition of the supremacy of the Constitution and laws 

of the United States.6 The Department of Justice concluded:

Indeed, it seems to us that this statement in the preamble 

is sufficient to overcome any contention that the explicit 

or tacit approval of the constitution by Congress would 

have the effect of relinquishing the sovereignty of the 

United States over Guam and the supremacy of Federal 

laws.7

On the basis of this history, we conclude that this proposed constitution is in substantial compliance with § 2(b)(1) as regards this point.

II. Bill of Rights

The Bill of Rights, Article I of the constitution, does not appear to 

be in conflict with the Enabling Act or any pertinent federal law. 

However, we believe that some of its provisions and related sections in 

other parts of the constitution have not been drafted with adequate 

clarity and precision. As President Carter pointed out on April 28, 

1978, in his comments on the Guam constitution (Pub. Papers of Jimmy 

Carter 795, 796-97 (1978)), such vagueness may result in litigation that 

could burden or curtail effective local government.

1. Article I, § 1: Fundamental Rights

The first sentence of this section would provide that “the dignity of 

the human being is inviolable.” There is no definition of the scope of 

the elusive term “dignity.” It is not clear whether the section is directed only at governmental action or also at private action, and 

whether the first sentence is supposed to be defined by the two sentences following it. Moreover, the relationship between the equal

4 Constitution o f Guam, Hearing before the Committee on Energy and Natural Resources, United 

States Senate, 95th Cong., 2d Sess. 60-67 (1978) ("Hearing").

5 Id., at 64.

«/</.. at 61.

7 Id., at 64.

761
protection clause in the second sentence and the prohibition against 

discrimination in the third sentence is unclear.

2. Article I, § 3: Right o f Privacy

This section seems to create an absolute right of privacy that cannot 

be limited or defined by statute. Again, it is not clear whether this 

clause is directed only at governmental action or also at private action. 

Moreover, while under Article 1, § 4 of the Virgin Islands constitution 

the right to know provided for in that section would yield to the right 

of privacy, the constitution does not attempt to solve potential conflicts 

between the “absolute” right of privacy under § 3 and the freedom of 

speech and of the press guaranteed by Article I, § 2 of the Virgin 

Islands constitution and the First Amendment to the Constitution of the 

United States.8 C f, New York Times v. Sullivan, 376 U.S. 254 (1964).

3. Article I, § 4: Right to Know

This section would authorize any person to examine any public 

document and observe the deliberations of any agency of the government subject to reasonable limitations, as may be provided by law. It is 

not clear whether the term “reasonable limitation as may be provided 

by law” refers only to statutory limitations to be enacted in the future 

or whether it includes existing statutory and common law restrictions 

on the access to documents and deliberations. If the former interpretation is the correct one, all public documents, including classified documents, and all deliberations of governmental bodies, including courts, 

grand juries, and petit juries, would be open to the public pending the 

enactment of the pertinent legislation. Considering the controversial 

nature of the subject matter, the adoption of such legislation may take 

some time. And even then there may be complex litigation as to 

whether the statutory limitations are reasonable.

4. Article I, § 5: Searches and Seizures

The third sentence, which prohibits the interception of communications unless authorized by warrant, would in its breadth appear to 

require the use of warrants even for the one-party consensual interception of communications. In view of the preemption of this field by 

chapter 119 of Title 18, United States Code, this section is plainly 

limited to prosecutions under local law and should not affect federal 

prosecutions.

* The Bill o f Rights for the Virgin Islands embodied in its O rganic A ct expressly extends the First 

Amendment to the C onstitution o f the United States to the Virgin Islands with “the same force and 

effect there as in the United States or in any State o f the United States." 48 U.S.C. § 1561.

762
5. Article I, § 10(e): Child Labor

This subsection prohibits child labor in certain instances but does not 

define the term “child” by reference to age.

6. Article I, § 15: Implementation of Rights

The second sentence gives the Senate the power to provide by law 

for the implementation and enforcement of this article. This sentence 

raises doubts whether and to what extent the provisions of the Bill of 

Rights are self-executing, and whether they require statutory implementation in order to become effective. This point should be clarified.

7. Article IX, § 1(b): Free Education

The third sentence of this subsection provides that public elementary 

and secondary education shall be “essentially” free. The word “essentially” is undefined and may well become the source of needless and 

time-consuming litigation.

8. Article X, § 7: Right to a Healthful Environment

According to this section, every person has the right to a healthful 

environment subject to reasonable limitations, as provided by law. This 

right may be enforced “against any party subject to reasonable limitations as may be provided by law.” The effect of this broad provision is 

to confer constitutional dimensions to the law of nuisances and to invite 

litigation to determine whether statutory limitations on this constitutional right are or are not reasonable.9

III. Citizenship

Article III, § 1 of the constitution defines the term “Virgin Islander” 

as a person born in the Virgin Islands or a descendant of at least one 

parent who was born in the Virgin Islands. The term Virgin Islander 

does not appear anywhere else in the constitution; therefore, its inclusion would not appear to have any legal consequences. On the other 

hand, its presence could encourage the enactment of discriminatory 

legislation favoring Virgin Islanders.

Section 2, Article III defines, the term “citizens of the Virgin Islands.” We must comment adversely on this section because the definition of that term is preempted by federal law and because § 2 is in 

conflict with that law.

9Wc have been advised that this section is based on Article XI o f the Illinois Constitution of 1970. 

There has been a substantia] amount of litigation involving that article, but in the time available we 

have been unable to assess the possible implications of that litigation in the context o f the Virgin 

Islands constitution assuming, arguendo, that the Virgin Islands' courts would interpret this provision 

in a way similar to the interpretation given by the Illinois courts to their provision.

763
The first sentence of the first section of the Fourteenth Amendment 

provides that “all persons born or naturalized in the United States, and 

subject to the jurisdiction thereof, are citizens of the United States and 

the State in which they reside.” Concededly, the direct applicability of 

the Fourteenth Amendment to the territories has not been settled as 

yet. See, e.g.. District o f Columbia v. Carter, 409 U.S. 418, 423 (1973); 

Examining Board v. Flores de Otero, 426 U.S. 572, 601 (1976); Torres v. 

Puerto Rico, 442 U.S. 465, 469-71 (1979).10 However, the Bill of Rights 

of the Virgin Islands contained in the Organic Act specifically extends 

to the Virgin Islands the Privileges and Immunities Clause of the 

second sentence of § 1 of the Fourteenth Amendment with “the same 

force and effect there as in the United States or any State of the United 

States.” 48 U.S.C. § 1561. One of the privileges and the immunities of a 

citizen of the United States is the privilege to be a citizen of the State 

in which he establishes his residence. The Slaughter-House Cases, 83 

U.S. (16 Wall.) 36, 80 (1872). Citizenship in a state or a territory such 

as the Virgin Islands to which the Privileges and Immunities Clause of 

the Fourteenth Amendment extends accordingly is preempted by federal law and exists without reference to or interference by state constitutions or laws. United States v. Hall, 26 Fed. Cas. 79, 81 (C.C.S.D. 

Ala. 1871) No. 15,282. As the court held in the Slaughter-House Cases,

supra, at 95, “[a] citizen of a State is now only a citizen of the United 

States residing in that State.”

Moreover, § 2 of Article III is inconsistent with the Citizenship 

Clause of the Fourteenth Amendment. That clause has been interpreted 

as follows:

1. Only a citizen of the United States can be a citizen of a 

State or Territory. The Slaughter-House Cases, supra, at 95; 

United States v. Hall, supra, at 81; Colgate v. Harvey, 296

U.S. 404, 427 n.3 (1935); Sharon v. Hill, 26 F. 337, 343 

(C.C.D. Cal. 1885); Factor v. Pennington Press, Inc., 230 F. 

Supp. 906, 909 (N.D. 111. 1963);

2. A citizen of the United States becomes a citizen of the State 

or Territory in which he resides immediately upon the establishment of his residence therein. Morris v. Gilmer, 129 U.S. 

315, 328 (1889); Paudler v. Paudler, 185 F.2d 901, 902 (5th 

Cir. 1950), cert, denied, 341 U.S. 920 (1951); and

3. A citizen of a State or Territory loses his citizenship therein 

when he establishes another residence. Paudler v. Paudler,

supra, 185 F.2d at 902 and authorities cited therein.

Section 2 is inconsistent with those federally established rules of state 

citizenship. Section 2(a) would provide that all persons born in the

10 We note that the D epartm ent o f Justice did not participate as a party or amicus curiae in these 

cases.

764
Virgin Islands and subject to its jurisdiction are citizens thereof. It does 

not comply with the federal requirement that citizenship in a State or 

Territory is contingent on U.S. citizenship 11 and on residence in the 

Territory.

Section 2(b) would provide that citizens of the United States who 

were born outside the Virgin Islands become citizens of the Virgin 

Islands only after they have been domiciled there for at least one year. 

This is inconsistent with the federal constitutional requirement that a 

citizen of the United States becomes the citizen of a State or Territory 

immediately upon the establishment of his residence therein.12 The oneyear residence requirement for the acquisition of Virgin Islands’ citizenship is of particular importance in view of Article IV, § 1 of the 

constitution, pursuant to which the right to vote is conditioned on 

Virgin Islands’ citizenship. The combination of Articles III, § 2(b) and

IV, § 1 thus has the practical effect of subjecting the right to vote in 

the Virgin Islands to a one-year durational residence requirement. The 

Supreme Court has found such a requirement to be unconstitutional. 

Dunn v. Blumstein, 405 U.S. 330 (1972).

Section 2(c) would in effect provide Virgin Islands’ citizenship to all 

those who are United States citizens pursuant to § 306(a)(1) of the 

Immigration and Nationality Act, 8 U.S.C. § 1406(a)(1). The subsection 

fails to recognize that Virgin Islands’ citizenship is conditioned on 

residence in the Virgin Islands.

Section 2(d) would provide for Virgin Islands’ Citizenship contingent 

upon the enactment of appropriate federal legislation, presumably legislation granting United States citizenship to certain persons born in the 

Virgin Islands who resided outside the United States between January 

17, 1917 and June 28, 1932 (§ 306 of the Immigration and Nationality 

Act, 8 U.S.C. § 1406). This subsection is defective because it does not 

limit Virgin Islands’ citizenship to those who reside in the Virgin 

Islands and does not require continued United States citizenship. Furthermore, this subsection would deny Virgin Islands’ citizenship to 

persons who are citizens or subjects of another country, although they 

are citizens of the United States.

11 Pursuant to § 306 of the Immigration and Nationality Act, 8 U.S.C. § 1406, not all persons born 

in the Virgin Islands prior to February 25, 1927, are citizens of the United States and some persons 

born in the Virgin Islands as United States citizens may subsequently have lost that citizenship under 

§ 347 of the Immigration and Nationality Act, 8 U.S.C. § 1481.

12 O ur attention has been directed to § 5(a) o f the Puerto Rico Federal Relations A ct, 48 U.S.C. 

§ 733a, which imposes a one-year residence requirement on the acquisition of Puerto Rican citizenship 

by citizens of the United States. This provision was enacted by Congress (A ct of M arch 4, 1927, § 2, 

44 Stat. 1418) and not by a Territory to which the Privileges and Immunities Clause of the Fourteenth 

Amendment has been extended. We express no opinion w hether Congress could constitutionally 

impose a one-year residence requirement in the Virgin Islands.

765
IV. Composition of the Senate

Article V, § 2 provides that the Senate, the unicameral legislature of 

the Virgin Islands, shall consist of fifteen members, that there shall be 

no more than four senators elected at-large, and that the legislative 

districts of St. Croix, St. John, and St. Thomas shall each be represented. Since the number of inhabitants of St. John is much smaller 

than that of the other two islands, the requirement that there shall be at 

least one Senator from St. John potentially violates the one-man-onevote rule.13 Whether such a violation would ultimately occur would 

likely turn on specific facts in existence at that time. The one-man-onevote rule does not require absolute equality. It permits some deviations 

designed to recognize the integrity of political subdivisions, or the 

recognition of natural or historical boundary lines. See, e.g., Reynolds v. 

Sims, 377 U.S. 533, 574-75, 579-81 (1964); Swann v. Adams, 385 U.S. 

440, 444 (1967). See also S. Rep. No. 433, 94th Cong., 1st Sess. 69

(1975) (discussing with approval a similar departure from the one-manone-vote rule in § 203(c) of the Covenant with Northern Mariana Islands, Pub. L. No. 94-241, 90 Stat. 265, 48 U.S.C. § 1681 note).

Article V does not establish a term for the senators and does not 

provide that their terms are to be determined by statute.

V. Residence Requirement for the Governor and Lieutenant Governor

Article VI, § 3(e) of the constitution provides that the governor and 

lieutenant governor must have been domiciled in the Virgin Islands for 

fifteen years, five of which must immediately precede the date of taking 

office. This provision exceeds by one year the residency requirement 

for the President of the United States (U.S. Const. Art. II, § 1, cl.. 4) 

and by one-half the longest existing residence requirement for state 

governors.14

The validity of this provision is questionable. The Supreme Court has 

held that candidates for public office “do have a federal constitutional 

right to be considered for public service without the burden of invidiously discriminatory disqualifications.” Turner v. Fouche, 396 U.S. 346, 

362 (1970); Bullock v. Carter, 405 U.S. 134, 142-44 (1972). In Illinois

Election Board v. Socialist Workers Party, 440 U.S. 173, 185 (1979), the 

Court pointed out that where the access to the ballot is concerned 15

13 W e are not aw are of any reported case specifically applying the one-man-one-vote rule to the 

Territories. T he Virgin Islands' Bill o f Rights, how ever, specifically extends the Equal Protection 

Clause o f the Fourteenth Amendment to the Virgin Islands to have the same force and effect there as 

in a State. 48 U.S.C. § 1561.

14 A ccording to Chimento v. Stark, 353 F. Supp. 1211, 1217 (D.N.H. 1973), a ffd 414 U.S. 802 

(1973), in 1973, 43 states had residence or citizenship requirements for the office of governor: ranging

from ten years (Louisiana, Missouri, and Oklahom a) to one year (Minnesota).

16 Bullock v. Carter, supra, at 142-43, explained that in the area of placing burdensome limitations 

on the qualification o f candidates, “ the rights o f voters and the rights of candidates do not lend 

themselves to neat separation; laws that affect candidates always have at least some theoretical, 

correlative effect on voters.’*

766
the State, even where it seeks to protect a legitimate interest, has to 

adopt the least drastic means to achieve that end.

The Supreme Court has not as yet passed on durational residence 

requirements for the holding of office. It has summarily affirmed three 

decisions which upheld five- to seven-year residence requirements for 

the offices of state senator and state governor. Chimento v. Stark, supra,

(seven years; state governor); Kanapaux v. Ellisor (D.S.C. unreported), 

a ffd 419 U.S. 891 (1974) (five years; state governor); Sununu v. Stark,

383 F. Supp. 1287 (D.N.H. 1974), a ffd 420 U.S. 958 (1975) (seven 

years; state senator).

The official analysis of the constitution gives the following reasons 

for the fifteen-year residence requirement:

While this domiciliary requirement is longer than that for 

similar offices in the States of the Union, it is intended to 

insure to the greatest extent possible familiarity with the 

particular problems of the Virgin Islands. Such familiarity 

is not as easily acquired as it might be in the continental 

United States, among other reasons, due to the Virgin 

Islands’ status as an unincorporated territory of the United 

States and to its geographical, historic, social, economic 

position and unique culture as a group of small islands in 

the Eastern Caribbean.

In Chimento, supra, the district court similarly justified the seven-year 

residency requirement for the Governor of New Hampshire by reference to the need of that officer to be familiar with and exposed to the 

conditions, problems, and needs of the State and the various requirements of its population. The court, however, conceded that the sevenyear requirement “may approach the constitutional limit.” 353 F. Supp. 

at 1217. It may be significant, at least under the Chimento court’s 

analysis, that in 1972, New Hampshire had nearly 780,000 inhabitants 

and covered a land area of 9,033 square miles, id. at 1215 n.8, while 

according to the 1970 census, the Virgin Islands had 62,000 inhabitants 

and covered 133 square miles.

On the other hand, there are several instances in which federal courts 

have struck down residence requirements for state or local officials. 

Thus, the Eighth Circuit, in Antonio v. Kirkpatrick, 579 F.2d 1147, 1151 

(8th Cir. 1978), held that a ten-year residency requirement for the office 

of State Auditor for the State of Missouri constituted a denial of equal 

protection and did not bear a rational relationship to a legitimate state 

end. The district court, in Billington v. Hayduk, 439 F. Supp. 975, 979 

(S.D.N.Y.), affd on other grounds, 565 F.2d 824 (2d Cir. 1977), invalidated “as impermissible under the Equal Protection Clause” a five-year 

residence requirement for the office of County Executive for W'estchester County, New York. According to the 1970 census, that county 

had 984,000 inhabitants and covered 443 square miles. The district

767
court, in Alexander v. Kammer, 363 F. Supp. 324 (E.D. Mich. 1973), 

held that a five-year residence requirement for the Office of City 

Commissioner of the City of Pontiac, the population of which is similar 

to that of the Virgin Islands, was not supported by a compelling 

governmental interest. And in Brill v. Carter, 455 F. Supp. 172 (D. Md.

1978), the district court held unconstitutional a four-year residence 

requirement for the office of councilman for Anne Arundel County 

(300,000 inhabitants, 423 square miles).16

The argument supporting the fifteen-year requirement would be that 

the responsibilities of the Governor—even of a small Territory—differ 

substantially from those of the head of a county—even of a large one— 

and that the conditions in the Virgin Islands are quite different from 

those that prevail on the mainland. These considerations would support 

an extended durational residence requirement if the latter is based, as is 

assumed in many cases on the need of the prospective official to 

acquaint himself with the problems of the area and its inhabitants and 

to have extended exposure to the electorate. These points, however, are 

counterbalanced, at least in part, by the small size of the Virgin Islands 

and its population. We therefore believe there is every reason to question whether the courts will uphold a residence requirement that is 

more than twice as long as the New Hampshire seven-year period, 

which the Chimento court, supra, had characterized as probably 

“approaching] the constitutional limit.”

On the other hand, we do not believe that the various five-year 

residence requirements provided for in the constitution should give rise 

to serious constitutional problems. See, e.g., Article V, §4(e) (senator); 

Article VII, §6(b) (judge); Article XI, §4(b) (auditor general).

VI. Judicial Branch

Article VII, §§ 1 & 2 of the constitution provide for an appellate 

court. This provision is in conflict with § 2(b)(6) of the Enabling Act, 

pursuant to which the “system of local courts provided for in the 

constitution must be consistent with the Revised Organic Act of the 

Virgin Islands.” The pertinent provisions of the Revised Organic Act, 

§§22 & 23, 48 U.S.C. §§ 1612, 1613 do not provide for a local appellate 

court; appeals from the local courts go to the federal district court.

Article VII, § 2 contains defects in addition to its being inconsistent 

with the Enabling Act. The last sentence provides that appeals from 

decisions of the appellate court on federal questions will go to the 

United States Court of Appeals for the Third Circuit unless Congress 

provides otherwise. The United States courts of appeals, however, are 

purely statutory courts and have only such jurisdiction as is conferred 

on them by Congress. See, e.g., Gialde v. Time, Inc., 480 F.2d 1295,

16 T he opinion contains an analysis of many pertinent decisions. 455 F. Supp.. at 175.

768
1298 (8th Cir. 1973). A territorial constitution therefore cannot confer 

appellate jurisdiction on a United States court of appeals. Consequently, 

there would be no federal forum for the review of decisions of the 

appellate court involving federal questions. This raises a problem similar to that involved in Guam v. Olsen, 431 U.S. 195, 201-04 (1977). The 

Supreme Court held in Guam that in the absence of a “clear signal 

from Congress,” a Territory cannot establish a court if its decisions 

involving federal questions are not reviewable by a court established 

under Article III of the Constitution.17 Hence, even if § 2(b)(6) of the 

Enabling Act had not prohibited the establishment of an appellate 

court, the Virgin Islands still could not create such a court in the 

absence of federal legislation providing for the review of its decisions 

involving federal questions in an Article III court.18

The judicial provisions of the constitution raise an additional problem. Section 5 of the Transitional Schedule would establish an interim 

appellate court consisting of the two district judges for the Virgin 

Islands and a chief judge appointed pursuant to the provisions of the 

constitution. According to the constitution, the appellate court would 

have several not strictly judicial functions, such as to promulgate reapportionment plans (Article V, § 3(b)), to sit as a court of impeachment (Article V, § 12), and to determine questions involving the disability of the Governor and Lieutenant Governor (Article VI, § 9(b)). 

Since territorial judges are not Article III judges, they could be vested 

with nonjudicial functions. Nevertheless, the involvement of federal 

judges in those delicate local political issues may become a source of 

embarrassment. Moreover, since the appellate court would act as an 

administrative body in those situations, its decision could conceivably 

be subject to judicial review in the federal district court, composed of 

the same judges who handed down the decision in their capacity as 

members of a territorial judicial body performing nonjudicial functions.

Article VII, § 4 establishes a commission to deal with judicial misconduct and disability. In view of its serious impact on judicial independence, this section should have been drawn with greater precision. 

It lacks provisions for the selection of the commission and for the 

qualification of its members, as well as any standards for the discipline, 

censure, suspension, removal, and compulsory retirement of judges. The 

section provides for the “appeal” of decisions of the judicial commis17 Indeed, (he Court indicated that constitutional issues might be presented if Congress sought to 

deny litigants in a local territorial court access to an Article III court for (he apppellate review of 

local-court decisions. 431 U.S. at 204.

18 T he second sentence of Article V II, § 2 provides that the decisions of the appellate court on nonfederal questions shall be final, unless federal law provides for their review by the Supreme C ourt of 

the United States. In our view, it is up to Congress to determ ine which federal court, if any, shall 

review cases decided by the Virgin Islands appellate court which do not involve federal questions. If 

Congress should decide that there should be such review, it would generally be more appropriate that 

it be had, at least initially and as a m atter o f right, in the court of appeals rather than in the Supreme 

Court.

769
sion. In case of actions taken by the commission against appellate 

judges, recusations may result in a lack of quorum in the appellate 

court, or require under the necessity doctrine the participation of 

judges who ordinarily would have to disqualify themselves in view of 

their connection or involvement with the subject matter of the appeal. 

This problem, however, is inherent in judicial discipline proceedings 

and not confined to the Virgin Islands. The implementing legislation 

could provide for the temporary assignment to the appellate court of 

trial court judges to sit in lieu of disqualified appellate judges.

VII. Tax Administration and Tax Exemption of Territorial Bonds

Article XI, § 2 provides that:

Laws shall be enacted to administer and enforce the 

income tax and the federal tax laws applicable to the 

Virgin Islands.

This section must be read in the context of § 2(b)(1) and (4) of the 

Enabling Act, which limits the constitution to subject matters relating 

to local self-goverment.

The Virgin Islands presently operates under a so-called “mirror 

system” of taxation with the Internal Revenue Code administered and 

enforced by the Virgin Islands as a territorial income tax. Act of 

July 12, 1921, § 1, 42 Stat. 123 (48 U.S.C. 1397). Dudley v. Commissioner o f Internal Revenue, 258 F.2d 182 (3d Cir. 1958). Under the 

present law a constitutional provision to enact territorial laws to administer and enforce this territorial income tax would not be objectionable. 

There are, however, indications that the income tax will be “federalized” in the Virgin Islands. President Carter proposed in his Message 

on Federal Territorial Policy of February 14, 1980, Pub. Papers of 

Jimmy Carter 317, 322 (1980), that legislation be enacted making the 

Internal Revenue Code directly applicable to the territories for income 

tax purposes and providing that the Internal Revenue Service, rather 

than the territories, be responsible for its administration and enforcement. The Department of the Treasury has drafted a proposed Territorial Tax Act to implement the presidential message which is presently 

under consideration by the Office of Management and Budget. Legislation to that effect has been introduced in Congressmen S. 2017, 96th 

Cong., 1st Sess. (1979). We have also been advised that a pertinent 

provision may be inserted in the current Territorial Omnibus Bill now 

pending in the House of Representatives. Should this legislation be 

enacted, the income tax laws would cease to be a matter of selfgovernment in the Virgin Islands and the reference in this section to 

the income tax laws would become inconsistent with the Enabling Act.

To the extent that Article XI, § 2 would provide for the enactment 

of legislation to administer and enforce “the federal tax laws applicable

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to the Virgin Islands,” the section deals with a subject matter which 

does not relate to self-government; consequently it violates the terms of 

the Enabling Act.

The second paragraph of Article XI, § 3 would exempt the bond 

issues of the Virgin Islands, and specifically the interest thereon, from 

taxation by the Federal Government, any State, Territory, or the District of Columbia. The exemption of the bond issues of the Virgin 

Islands from taxes imposed by the Federal Government or the States, 

Territories, or the District of Columbia clearly is not a matter of 

local self-government and therefore not authorized by the Enabling 

Act. (See §§ 2(b)(1),(d)). Only Congress can grant such tax exemption.

VIII. Continuation of Laws

Section 3 of the Transitional Schedule provides:

Laws, executive orders, and regulations . . . that are inconsistent with this Constitution shall be void to the 

extent of such inconsistency.

This sentence does not in terms limit its scope to laws, executive 

orders, and regulations relating to matters of local self-government. It 

would be unauthorized if it purported to apply to matters over which 

the Federal Government retained jurisdiction. The draft official analysis 

of the constitution 19 states that this section does not cover laws, 

executive orders, or regulations that are beyond the authority of the 

Virgin Islands, such as federal laws. The need to rely on the legislative 

history to ascertain the scope of a constitutional clause, however, is an 

undesirable drafting technique, especially in light of the frequently 

adhered to canon of statutory construction which prohibits the use of 

interpretative materials where a text appears to be unambiguous on its 

face.

IX. Summary and Effect of the “Deemed” Approval of the Constitution

In summary, the constitution does not expressly comply with the 

requirements of the Enabling Act to recognize the sovereignty of the 

United States and the supremacy of its Constitution and laws. Moreover, it raises the following substantial legal issues: (1) questions regarding Virgin Islands’ citizenship; (2) the durational residence requirements 

for the Governor and Lieutenant Governor; (3) the appellate court; and 

(4) the fiscal provisions. In addition, some of its provisions are drawn 

so loosely as to invite vexatious and possibly paralyzing litigation. In 

this category are the provisions guaranteeing the inviolability of the 

dignity of the human being, the absolute right of privacy, and the right 

to a healthful environment.

19 See note 2, supra.

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In 1978, Congress did not take any action on the constitutions drafted 

by the constitutional conventions of Guam and the Virgin Islands 

within the 60-day period provided for in § 5 of the Enabling Act. The 

two constitutions accordingly were submitted to the voters of Guam 

and the Virgin Islands, respectively, and both of them were defeated. 

In view of the possibility that Congress again will fail to pass a joint 

resolution modifying the previously mentioned legal defects of the 

constitution, it appears appropriate to consider the legal consequences 

of the “deemed” approval of the constitution resulting from congressional failure to act.

Basically, Congress can take legal action only in the manner provided for in Article I, § 7 of the Constitution, i.e., by the concurrence 

of both Houses to a bill or resolution and its presentation to the 

President. Inaction of Congress therefore cannot have any legal effect, 

except as, in this case, as the occurrence of a condition which permits 

the submission of the constitution to the qualified electors of the Virgin 

Islands. Taking this view, the inaction of Congress would not have any 

curative effect on the defects of the constitution.

The result, however, would be no different if it were assumed 

arguendo that the omission of Congress to object to the failure of the 

constitution to comply with the requirements of the Enabling Act has 

the effect of waiving that noncompliance. Any such waiver would 

logically be limited to the provisions of the Enabling Act itself. It could 

not override constitutional requirements such as those involved in the 

issues relating to the Virgin Islands’ citizenship arid the durational 

residence requirements of the Governor or Lieutenant Governor. Similarly, such waiver could not override other existing statutes or serve as 

a substitute for the enactment of a statute. Thus, in connection with the 

appellate court issue, it could possibly be argued that the “deemed” 

approval of the constitution overcomes the requirement of the Enabling 

Act that the court system be consistent with the existing one, hence, 

that the constitution could provide for an appellate court. The supposed 

waiver, however, could not have the effect of granting a federal appellate court jurisdiction to review the decisions of the Virgin Islands’ 

appellate court. That can be done only by positive legislation. Again, 

the supposed waiver could not override or modify the existing statutes 

providing for the administration of federal tax laws by federal agencies, 

or take the place of a statute granting Virgin Islands bonds exemption 

from federal or state taxation.

A l a n A . P a r k e r

Assistant Attorney General

Office o f Legislative Affairs

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