What are the obstacles and opportunities facing democracy today? Zócalo is publishing a series of letters to highlight how the world’s democratic ideals are faring in practice. From the Virgin Islands: democracy expert J.H. Snider reports on why the U.S. territory does not have a constitution of its own, despite its citizens’ wishes.
This series is presented in tandem with tonight’s Zócalo event in Mexico City—“Are Elected Presidents Bad for Democracy?,” presented in partnership with Democracy International and Metropolitan Autonomous University for the Global Forum for Modern Direct Democracy 2023.
If you’re a U.S. territory, the incentives for creating a democratic constitution may be surprisingly poor.
One discouraging example is the U.S. Virgin Islands (USVI), where the legislature has consistently prioritized empowering itself, not the people, when enabling a constitutional convention to propose a constitution.
All 50 U.S. states have state constitutions. But the U.S. also has five self-governing territories: American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. And of these, two currently lack constitutions: Guam and the Virgin Islands.
During spring 2020, territorial lawmakers in the Virgin Islands took steps to change that by passing legislation for an advisory referendum on whether to call a territorial constitutional convention. The convention would draft a constitution requiring approval from both the U.S. Congress and USVI voters before it could become law.
In November 2020, voters overwhelmingly approved the convention call. The convention itself, however, still hasn’t happened. And it’s not clear that it ever will.
Constitutional conventions are generally rare in the U.S., at least in our times. American states have convened 236 such conventions since America’s founding, but none since 1986.
But in the territory of the Virgin Islands, things have been busier. Between 1965 and 2012, the Virgin Islands convened five conventions. None, however, won approval for the constitution it proposed.
The people of the Virgin Islands keep trying because they have a longstanding interest in changing their colonial relationship with the U.S. Currently the Virgin Islands’ fundamental law is an act that Congress passed and has the exclusive power to amend. If the Virgin Islands had its own constitution, the constitutional amendment power would be transferred to the Virgin Islands.
What keeps going wrong? The territorial legislature has backed convention proposals that empower the lawmakers themselves and their special interest allies rather than the Virgin Islands’ people. These corrupt motives have been combined with gross sloppiness in the legislature’s drafting process, seemingly born out of its culture of secretiveness combined with excessive confidence in its own untutored knowledge. The result, ironically demonstrating that the process ultimately works the way it should, has been that either Congress or Virgin Islands’ people have refused to ratify each of the five convention-proposed constitutions.
Now for some basic constitutional theory: To the extent practical, the power to draft constitutional change should be placed in the hands of the people. Government officials (the so-called “constituted powers”), including the legislature, shouldn’t be permitted to propose and approve their own constitutional powers. Accordingly, Congress requires that all new constitutions of U.S. territories be proposed by an independently elected convention, and approved by Congress as well as by voters in the territory. This tradition began in late 1770s Massachusetts, when voters expressed great distrust of the state legislature’s proposal and ratification of a new state constitution. These voters contended that it was a blatant conflict of interest for the legislature to propose and approve its own constitutional powers—a then-popular definition of legislative tyranny.
Although Congress mandates an independent convention process to propose a constitution, it leaves the implementation details of that process to territorial legislatures. Under the right circumstances, such as when public deliberation is poor, this creates incentives for those legislatures to behave badly. Instead of embracing Congress’ requirement for independent conventions, they design conventions to be subservient to their own interests and their fellow elites. One way that legislatures can get away with this is by inhibiting the public from paying attention until late in the process.
USVI’s legislature performed such sleight-of-hand when passing its six enabling acts to convene its constitutional conventions. The first two times, the legislature ensured that its own members and other government officials would be the convention delegates. The first convention merely reconvened the legislature and called it a convention; during the second convention, 15 of the 33 appointed delegates were incumbent legislators, and the two-thirds majority required to pass a proposal gave the legislator-delegates veto power.
(Indeed, both conventions were such gross violations of a convention’s democratic function that neither deserves the label “convention.” But the Virgin Islands has always labeled them as such, which is why the current enabling act is officially the territory’s sixth.)
In the third, fourth, and fifth enabling acts, the constituted powers were granted control of the convention process in more subtle ways. The sixth act carries on that tradition. It was approved just a month ago—in late January—and is designed to create strong incentives for the convention to include Congress’ existing act for USVI in any new constitution, along with an amendment giving the legislature effective control over future amendments.
Since Congress is unlikely to oppose its own act, the legislature’s thinking goes, once Congress and the voters approve any constitution, the legislature could then convene a constitutional revision commission, under tight control, to propose amendments to submit to the people for their approval.
The enabling act for the sixth convention includes numerous provisions to ensure legislative control. Among them:
-Forcing the convention to use the legislature’s and governor’s legal staff as counsel.
-Making delegates beg the legislature for funds to run a convention, including paying for non-legislature staff, for more than a minimal period.
-Spending $150,000, half the convention’s total budget, on a PR campaign to win public ratification of the convention’s proposed constitution.
-Ensuring delegate election rules that suppress minority representation. This super-gerrymandering, modeled after legislative election practices, establishes huge multi-member districts that prevent fair representation.
-Favoring political elites over relatively unknown candidates through a variety of clever devices.
-Guaranteeing no loss of pay or position if government, but not private sector, candidates win.
If the legislature were serious about creating a democratically accountable convention process, it would have conducted a genuinely open debate about the process, including inviting experts to testify about the process’s democratic function and design. Instead, it debated such issues in secret. The enabling act’s unanimous passage after 11:00 pm on Dec. 29, 2022, 26 months after voters approved calling a convention and less than two hours before the session adjourned, illustrates legislators’ penchant for secrecy. In 2016, the Society of Professional Journalists awarded its “annual Black Hole Award to the Government of the United States Virgin Islands for its bald and breathtaking contempt of the public’s right to know.”
This secrecy has a cost—especially in sloppy and embarrassing errors that could have been avoided if more public eyes had been allowed to read the legislation prior to its passage and signing by the governor. For example, the legislature was forced to change the enabling act’s original delegate election date because it had already passed by Dec. 29, 2022—but then forgot to change subsequent dates in the act. Similarly, it created inconsistencies when it changed the delegate districting at the last moment.
These inconsistencies were then not publicly detectable until after the governor signed the enabling act on Jan. 19, 2023 when the last-minute amendments made in the wee hours of Dec. 29, 2022 were for the first time publicly released. The governor blames the legislature for this carelessness. These inconsistencies make the enabling act impossible to implement.
To fix the problem, the courts could, say, rule that the delegate election date should take precedence over the other dates, and then grant convention delegates—not the legislature—substantial control over the calendar. On the districting inconsistencies, the courts could rely on clear legislative intent. More likely is that the legislature will seek to quietly fix the problems itself, on its own self-serving terms.
Before then, the public should call for democratic improvements. For example, ranked-choice voting should be used for delegate selection. Government officials, including sitting legislators, should be prevented from running for delegate. Delegates should be prevented from running for another office until at least a year after the convention adjourns. All delegates should be paid equally.
Candidates for delegate should submit their resumes and reasons for seeking office to the territory’s Board of Elections, which should then mail that information in a pamphlet to all voters as well as make it available online. And assuming Congress ratifies the proposed constitution, a televised citizens’ assembly randomly selected, organized, and moderated by the Virgin Islands’ chief justice should vote on it after listening to its representative supporters and opponents among convention delegates. The resulting vote tallies should be published on the ballot to help voters decide whether to vote for or against the proposed constitution.
Another option would be for the public to pass a law by ballot initiative to fix the enabling act. However, the Virgin Islands’ bar for approving an initiative is so high that no initiative has ever been passed, indicating this is an unrealistic mechanism to fix the enabling act’s problems.
Improving the Virgin Islands’ initiative process—which legislatures have failed to do because an initiative, like a convention, bypasses them—should be a top convention priority. So should guarding the convention process itself against future legislative abuse.