A Sixth Constitutional Convention? Mmm, Not Now, Maybe Later

For all practical purposes, the legislative proposal to hold a sixth Constitutional Convention next year is dead, having been allowed to languish in committee until it’s too late to implement.

The bill would have called for the election of 15 delegates to the convention during this November’s General Election. Supervisor of Elections Caroline Fawkes has said that Elections would need a minimum of four months to certify candidates and prepare ballots.

There was no response to messages left over several days seeking comment from the bill’s sponsor, Sen. Janelle Sarauw.

Could a sixth Constitutional Convention strike the balance between Virgin Islands’ cultural protections and U.S. equal rights laws? (Source file photo)

However, Sen. Genevieve Whitaker, who signed on as a co-sponsor, told the Source she has “an extensive amendment” that would make several changes to the bill, including adjusting dates to accommodate the delay in its implementation. She has circulated her amendment and is waiting for the Senate President to call a Committee of the Whole so she can formally offer it.

The territory currently operates under the Revised Organic Act of 1954, a document formulated by the U.S. Congress as the blueprint for the territory’s governmental structure. In 1976 Congress authorized the Virgin Islands to replace that document with a locally drafted territorial constitution, and over the ensuing 46 years, residents have made five attempts to do so. All have been rejected either by Congress because of clashes with federal law or by V.I. voters, or by both.

Once the territory has its own Constitution, it also has the right to amend that Constitution. Only Congress can amend the Organic Act.

Given that, and given the difficulty past efforts have had on reaching consensus, there have been suggestions that the territory moves to adopt the Organic Act as its Constitution, so at least it will have a starting point in a document that it can amend.

In a non-binding referendum that was included in the 2020 election, a majority of voters who answered the question favored that approach.

The bill as it reads now directs the next convention to “use, revise, modify, substitute, or delete parts of the Revised Organic Act of 1954 . . .”

But Whitaker said, “That’s an impossibility” because the Legislature does not have the authority to direct the path that convention delegates will take. Her amendment would delete the section.

It also would add language spelling out a series of items that federal officials have already said must be in the constitution:

A recognition of U.S. sovereignty
A republican form of government with executive, legislative, and judicial branches.

A Bill of Rights
Language that “addresses the subject matter of those provisions of the Revised Organic Act of 1954” relating to self-governance.
Provision for a system of local courts.

The original bill contains a more blanket reference to the draft document needing to be in compliance with Public Law 94-584, the authorization passed by Congress.

Despite the referendum, Whitaker said, “we still need hearings, and we need the public input.” Her amendment calls for two public hearings on the measure, one on St. Thomas and one on St. Croix, before passage of the bill. Those would be held by the Legislature, sitting as the Committee of the Whole.

Whitaker’s amendment would also increase the anticipated cost of the convention and of the educational campaign that would follow it, leading to a binding referendum on the proposed document that comes out of the convention, roughly doubling it from the total of $300,000 in Sarauw’s bill covering two years of operations and education.

The amendment would ensure more compensation for delegates than the bill now contains. A government employee who takes a leave of absence to campaign for a delegate seat would no longer have to do so without their regular pay. And a person who works in the private sector and does not continue to receive their regular pay while they serve on the convention would receive not $50 a day, but rather, $100 a day.

Several dates in the original bill are not yet updated in the draft amendment, including the date on which the convention would actually begin. But the intent is apparently to make that in January of 2024 since the special election to choose delegates would take place in November 2023.

Whitaker said she doesn’t know whether Sarauw supports the amendment. She indicated that they had not really collaborated on the original proposal. Whitaker said she had wanted to offer a bill herself, but Sarauw’s bill request superseded hers, and so she became a co-sponsor.

Whitaker said she believes there is still time for the bill to be considered and amended and passed before the Legislature concludes the current term in December.

“I am hopeful that it will be,” she said.