Op-Ed: The Colony of the United States Virgin Islands

The logo of the flag of the U.S. Virgin Islands

There is no doubt that the Virgin Islands is a colony, although some are reluctant to use that term. Whatever political powers the islands possess are subject to the ultimate control of Congress. The only limit to this authority is that fundamental human rights, such as freedom of speech, press and assembly, must be respected. And the USVI is denied participation in the legislature that makes the rules that govern it. If this is not colonialism then what is?

How did this happen? To understand, we need to understand some history.

In the late 19th century European imperialism was at its height. Vast swaths of the globe were controlled by countries like France and Great Britain. And a growing power like the United States was to join them. Following the war against Spain, a declining empire, the Treaty of Paris (1899) ceded possession of the Philippines, Guam and Puerto Rico to the victorious Americans. That caused a major controversy and posed a serious dilemma. Does the constitution follow the flag? Were the inhabitants of the new territories to receive its full protections?

Until the acquisition of these new territories, existing ones had been placed in a limited self-government status pending their progression to statehood. While there were limits on democratic participation (e.g., appointed governors) these would eventually disappear. In the meantime, inhabitants were full-fledged members of the national community. But these areas had largely been settled by migrants from the existing states, and their populations mainly shared their ethnic and cultural characteristics. What to do with places whose peoples were not “white,” spoke a different language, had a distinct culture and were Catholic, not Protestant?

The heyday of imperialism was also the heyday of racist theories. Whites – Europeans- viewed themselves as inherently superior. They possessed a higher civilization and were duty-bound to spread it – the “white man’s burden.” Colonialism was not exploitation but a natural order of superiors ruling inferiors. It was to the ultimate benefit of the subject peoples. This belief system was widespread among the “Anglo-Saxon” elite who controlled the politics and economy of America. It formed the foundation of the Supreme Court decisions decided at the turn of the century.

Known collectively as the Insular Cases, these opinions remain the controlling legal precedents. They held that there were two types of territories. The incorporated ones were those Congress intended for eventual statehood and to which the Constitution fully applied. The unincorporated ones enjoyed no such destiny and only fundamental human rights were conferred. With that exception, the extension of other parts of the Constitution (e. g. citizenship, inclusion in the American customs union) was entirely up to Congress. The constitution did not follow the flag. These antiquated judicial doctrines still apply to the Virgin Islands and other “unincorporated ” territories (Puerto Rico, Guam, The Northern Marianas and American Samoa).

Search as you will in the Constitution (Article IV Section 3 is the only part that mentions territories) you will never find the words “unincorporated territory.” While it gives Congress the power to admit new states, the way of doing so, such as a transition period, is entirely within its purview. A general pattern was established for most potential states by congressional action. After a period of maturation, territories would become fully equal states of the union. Any inequality was temporary. This was the process that led to the growth of the United States from 13 to 50 states. There were exceptions – Texas and California were independent states prior  to admission – but this was the usual path followed.

The prospect of applying the same standard to the new possessions caused concern. They were ethnically and culturally  “different.” And what about the threat of their products flooding American markets through the extension of the U. S. customs union? Was the Anglo-Saxon elite prepared to extend a welcoming hand to them, as it had to past territories?

The Supreme Court decided it was not necessary. The “unincorporated”  territories could be treated differently. For example, tariffs could be placed on their products and citizenship did not automatically apply. It was up to Congress. These areas “belonged to, but were not a part of,” the United States.

Thus, the demands of racist and imperialist doctrine were accommodated. The new acquisitions could be treated differently and were placed in a politically subordinate limbo.  Whatever progress has been made in the expansion of self-government or in the expansion of political rights has been the result of Congressional action. The basic law of the Virgin Islands, for example, remains the 1954 Organic Act approved by Congress. The right to elect the governor was not granted until 1970.

What Congress gives, Congress can take away. Any political action on the part of the territories can, constitutionally, be voided. And they do not participate in these decisions.

Even an unlikely constitutional amendment will not provide full congressional representation for the Virgin Islands (senators come from states only) nor resolve the issue of ultimate congressional power over “unincorporated” territories. The only way to gain full democratic control is to become independent. An unlikely prospect perhaps, but one that merits fuller consideration.

In the meantime, the VI remains in political limbo. A colony of the United States.

Editor’s note: Paul Leary, Ph.D., is a Professor Emeritus of Political Science, University of the Virgin Islands.