Deputy Assistant Attorney General Jonathan G. Cedarbaum of the Office of Legal Counsel during a House Natural Resources subcommittee hearing on March 17, 2010. (Stephanie Woodrow/Main Justice)
Congress should consider revising the Virgin Islands’ proposed constitution so that it comports with the U.S. Constitution, Deputy Assistant Attorney General Jonathan G. Cedarbaum of the Office of Legal Counsel said during a House hearing Wednesday.
Cedarbaum was one of nine people who testified during a House Natural Resources insular affairs, oceans and wildlife subcommittee hearing on the proposed Virgin Islands Constitution.
In October 1976, President Gerald Ford signed a law that established a process by which the people of the Virgin Islands and Guam could adopt a constitution for their local self-government. The Virgin Islands made four previous attempts to adopt a constitution, but none of them were successful.
On June 12 2007, the Virgin Islands residents elected members to the Fifth Constitutional Convention in the latest attempt to establish a constitution for the territory. Last year, the Fifth Constitutional Convention drafted a proposal and, on June 1, 2009, submitted it to Virgin Islands Gov. John P. de Jongh. After initially declining to forward the proposal to the president, de Jongh sent the draft to President Barack Obama in December.
Obama then asked the Justice Department for its views on the proposed constitution. Assistant Attorney General for the Office of Legislative Affairs Ron Weich drafted a memo with his views and sent it to Obama. The president then submitted his comments and those from DOJ to Congress in advance of the hearing.
Both houses of Congress must vote to approve the document and Congress can modify the proposed constitution if it chooses. After the document receives congressional approval, voters in the Virgin Islands will have a chance to ratify the constitution before it is adopted.
The other panelists at the hearing Wednesday included de Jongh, Virgin Island Senate Minority Leader Usie R. Richards, Fifth Constitutional Convention President Gerald Luz James, II and Fifth Constitutional Convention Delegates Adelbert M. Bryan, Eugene A. Petersen, Lois Hassell-Habtes, Douglas Brady and Gerard Marlow Emanuel.
The DOJ’s memo touched on several areas of concern, which the president also noted in his letter of transmittal to Congress. During his testimony, Cedarbaum focused on three of them.
One of DOJ’s major objections stems from provisions that would give special privileges to “Native Virgin Islanders” and “Ancestral Native Virgin Islanders.” The document defines “native Virgin Islanders” as those born in the territory and “ancestral native Virgin Islanders” as those who can trace their ancestry back to someone who lived on the island prior to 1932. The constitution would give ancestral native Virgin Islanders an exemption from paying property taxes and also require candidates for governor or lieutenant governor to fall in to one of the two categories.
According to Cedarbaum, the provisions could potentially violate the equal protection clause in the U.S. Constitution.
“Because we find it difficult to discern a legitimate governmental purpose that would be rationally advanced by these provisions conferring legal advantages on certain groups defined by place and timing of birth, timing of residency, or ancestry we recommend that these provisions be removed,” Cedarbaum said. Other equal protection clause issues are raised by the residency requirements for office holders.
Cedarbaum said the DOJ was also concerned about the absence of an express recognition of U.S. sovereignty.
Local lawmakers who testified at the hearing said Congress should leave it up to the people of the Virgin Islands to draft their own constitution.
“As a native Virgin Islander, I believe with deep conviction that the Virgin Islands will fully come into its own … only when its people write, and consider, and ratify, their own constitution — a constitution by, of, and for all the people of the Virgin Islands,” de Jongh said.
