On January 28, 2025, the People of the Virgin Islands established a fourth, temporary branch of government — the 6th Constitutional Convention. The 6th Constitutional Convention is now exploring and exercising its duties to present to the People of the Virgin Islands a written framework of government that is drafted locally as opposed to being drafted by misinformed and innately disinterested, faraway parties.
With that, automatically adopting the Revised Organic Act of 1954 (ROA) as the Constitution of the Virgin Islands defeats the purpose of mobilizing the energy and resources necessary to convene a constitutional convention. The most particular reason for this futility is the fact that the ROA was not written by the People of the Virgin Islands; it was written by the United States Congress during a period when the People of the Virgin Islands did not even have a democratically elected representative in Congress.
This means that the language and framework within, and of, the ROA inherently delegates, or rather abdicates, constituent power to the United States Congress. I am of the opinion that we must establish, exercise, and maintain constituent power locally.
For instance, if we adopt the ROA as our constitution and are then asked, “Who drafted the Constitution of the Virgin Islands?” Our only truthful answer would be “the United States Congress.” However, we should be able to say, “The People of the Virgin Islands!” And within our future historical narrative(s) of this time and the past, we should be able to identify individuals and groups who advocated for particularly local and unique rights and protections.
There is significance to this idea, as the supremacy of a law is inextricably tied to the supremacy of the drafters of the law. If we follow through with adopting the ROA as our constitution, we would be affirming the supremacy of the United States Congress and that the will of Congress is supreme to the will of Virgin Islanders. I am completely and firmly of the idea that constituent power — power that is supreme to the powers provided for in a constitution of a government — must rest with the people to be governed, not a distant and disinterested polity.
Obviously, if the People are happy and content with the current framework of government established within the ROA, then there is no action to be taken. However, if we are unhappy and discontent with our current framework of government, then we should treat this moment in our people’s history as extraordinary; and we should be thoughtfully deliberative and thorough in designing a new and sensibly constituted form of government.
Furthermore, the issue and question of status is critically important and necessary in our consideration of designing our own framework of government. The reason is because constituent power actually and technically rests with the US Congress because our ability to even consider constituting our own framework of government came about from an Act of Congress in the form of Public Law 94-584. In avoiding the philosophical question of “legislating constituent power,” let’s accept and explore this political reality. The fact that our ability to consider constituting our own framework of government was born from an act of Congress means that Congress could also take that ability away! This technically means that constituent power rests with Congress, but obviously, Congress is not “the People of the Virgin Islands.” As a result, we have to grapple with the idea that we are indeed colonial subjects of the United States government as we pursue the drafting and ratification of a local constitution.
If we ratified our own constitution under our current status, we would need to, as a requirement of Public Law 94-584, recognize the “sovereignty” and “supremacy” of the United States Constitution. The most glaring issue with that sort of recognition in our current context is the fact that we are an “unincorporated” colony of the US. This means the privileges and protections of the US Constitution pertain to us only in part, not in totality. How can we recognize the sovereignty and supremacy of a document in whole when it only matters to us in part? It would make for a fractured, impracticable, and anomalous framework of governing.
So, to effectively assert and actualize our constituent power (our power to exercise self- determination), we have to ask, determine, and decide, “Who are the People?” Adopting the ROA as our constitution would be a step in the wrong direction. Furthermore, we need to ensure this 6th Constitutional Convention serves more purpose than simply rectifying the failures of the 5th.
—Malachi Thomas is a community advocate, public servant, and a 2014 graduate of Oberlin College.
Editor’s Note: Opinion articles do not represent the views of the Virgin Islands Source newsroom and are the sole expressed opinion of the writer. Submissions can be made to visource@gmail.com.
