 Department of Justice Views on the Constitution Adopted by
     the Constitutional Convention of the Virgin Islands

[T h e fo llo w in g m em o ran d u m , initially d ra fte d in th e O ffice o f L egal C ounsel at th e
   req u est o f th e A ssistant A tto rn e y G e n e ra l for L eg islativ e A ffairs, p resen ts th e D e p a rt­
   m ent o f Ju stice's v iew s on ce rta in provisions o f th e c o n stitu tio n a d o p te d by th e 1980
  co n stitu tio n al c o n v e n tio n o f th e V irg in Islands. T h is c o n stitu tio n w as a p p ro v e d by
   C o n g ress for subm ission to the peo p le o f th e V irgin Islands by Pub. L. N o. 97-2 1 , 95
   Stat. 105 (1981), but w as su b seq u en tly re je c te d in a refe ren d u m . A s o f th e d a te o f
  publicatio n o f this v olum e, th e V irg in Islands d o n ot h av e a co n stitu tio n . T h e fo llo w in g
  analysis o f th e p ro v isio n s o f th e re je c te d c o n stitu tio n discusses im p o rtan t an d re c u rrin g
  co n stitu tio n al and legal issues arising in th e co n tex t o f fe d e ra l-te rrito ria l relations.]


                                                                                       September 9, 1980

            MEMORANDUM OPINION FOR T H E DIRECTOR,
              O FFIC E OF M AN AG EM ENT AND BUDGET

   This responds to your request for the views of the Department of
Justice on the constitution adopted by the constitutional convention of
the Virgin Islands on July 31, 1980.
   Section 2(a) of the Act of October 21, 1976, Pub. L. No. 94-584, 90
Stat. 2899, 48 U.S.C. preceding § 1541 (“Enabling A ct”), authorized the
legislature of the Virgin Islands to call a constitutional convention to
draft a constitution for the local self-government of the people of the
Virgin Islands within the existing territorial-federal relationship. Section
2(b) of the Act provided that such constitution shall: (1) recognize and
be consistent with the sovereignty of the United States and the suprem­
acy of the provisions of the Constitution, treaties and laws of the
United States applicable to the Virgin Islands, iifcluding the provisions
of the Organic Act of 1936 of the Virgin Islands and the Revised
Organic Act of the Virgin Islands of 1954 which do not relate to local
self-government; (2) provide for a republican form of government,
consisting of three branches; (3) contain a bill of rights; (4) deal with
the subject of those provisions of the Revised Organic Act of the
Virgin Islands of 1954, as amended, which relate to local self-
government; and (5) provide for a system of local courts consistent
with the provisions of the Revised Organic Act of the Virgin Islands,
as amended.
   Sections 4 and 5 of the Enabling Act provide that the constitutional
convention shall submit to the Governor of the Virgin Islands a
                                                       759
 proposed constitution which shall comply with the requirements of
 § 2(b). The Governor in turn shall submit the constitution to the Presi­
 dent of the United States, who shall transmit it to Congress within 60
 calendar days together with his comments. The constitution shall be
 “deemed approved” by Congress within 60 days after its transmittal by
 the President, unless prior to that date Congress, by Joint Resolution
 subject to the approval of the President, has approved, modified, or
 amended it. The draft constitution as approved or modified by Con­
 gress shall then be submitted to the qualified voters of the Virgin
 Islands in a referendum for acceptance or rejection.
  I. Recognition of the Sovereignty of the United States and Supremacy of
               the Constitution and Laws of the United States

    In contrast to the 1978 constitution,1 this constitution does not ex­
 pressly comply with the requirement of § 2(b)(1) of the Enabling Act
 that it recognize the sovereignty of the United States and the suprem­
 acy of its Constitution and of those of its laws that are applicable to the
 Virgin Islands. Indeed, Article V, § 1 of the constitution refers to the
 supremacy of the constitution of the Virgin Islands and of the laws
 enacted under it without any reference to the supremacy of the Consti­
 tution and laws of the United States.
    If the Enabling Act did not contain this express requirement, the
 failure of the constitution to recognize the sovereignty of the United
 States and the supremacy of its Constitution and laws would not have
any substantial legal consequences because they are implied in the
Organic Act and flow from the territorial relationship. Indeed, few if
any state constitutions specifically refer to the sovereignty of the
United States or the supremacy of its Constitution and laws. The same
is true of the recently adopted constitution of the Northern Mariana
Islands.
   Moreover, the preamble to the constitution declares that the Virgin
Islands assume “the responsibilities of self-government in political union
with the United States”; in the draft official analysis of the constitu­
tion,2 the comments on the preamble contain the statement in “accord­
ance with section 2(b) of U.S. Public Law 94-584 (October 21, 1976)
[the Enabling Act] recognition is given to the sovereignty of the United
States over the Virgin Islands”; and finally, Article V, § 1 of the
constitution provides that the legislative power of the Virgin Islands
“shall extend to all subjects . . . consistent with . . . the Constitution
and laws of the United States applicable to the Virgin Islands.” During
the Senate hearings on the 1978 Guam constitution,3 which also failed

    1 T h e constitution adopted by the 1978 constitutional convention o f the V irgin Islands w as “deem ed
ap p ro v ed ” by C ongress but was defeated in the referendum .
   2 W e have not as yet received the final text o f those com m ents as approved by the constitutional
convention.
   3 T h e 1978 G uam constitution w as also defeated in a referendum .


                                                   760
to recognize expressly the sovereignty of the United States and the
supremacy of its Constitution and laws, the Department of the Interior
and the Department of Justice concluded that analogous provisions in
the Guam constitution and its official analysis constituted at least sub­
stantial compliance with § 2(b)(1) of the Enabling Act.4 In particular,
the Department of Justice took the position that, as the result of nearly
200 years of history, the term “political union with the United States”
necessarily carries with it recognition of the sovereignty of the United
States and the supremacy of its laws.5 The Department of the Interior
indicated that the definition of the legislative power of Guam carried
with it the recognition of the supremacy of the Constitution and laws
of the United States.6 The Department of Justice concluded:
         Indeed, it seems to us that this statement in the preamble
         is sufficient to overcome any contention that the explicit
         or tacit approval of the constitution by Congress would
         have the effect of relinquishing the sovereignty of the
         United States over Guam and the supremacy of Federal
         laws.7
   On the basis of this history, we conclude that this proposed constitu­
tion is in substantial compliance with § 2(b)(1) as regards this point.

                                        II. Bill of Rights

  The Bill of Rights, Article I of the constitution, does not appear to
be in conflict with the Enabling Act or any pertinent federal law.
However, we believe that some of its provisions and related sections in
other parts of the constitution have not been drafted with adequate
clarity and precision. As President Carter pointed out on April 28,
1978, in his comments on the Guam constitution (Pub. Papers of Jimmy
Carter 795, 796-97 (1978)), such vagueness may result in litigation that
could burden or curtail effective local government.

1. Article I, § 1: Fundamental Rights

  The first sentence of this section would provide that “the dignity of
the human being is inviolable.” There is no definition of the scope of
the elusive term “dignity.” It is not clear whether the section is di­
rected only at governmental action or also at private action, and
whether the first sentence is supposed to be defined by the two sen­
tences following it. Moreover, the relationship between the equal

   4 Constitution o f Guam, H earing before the C om m ittee on E nergy and N atural R esources, U nited
States Senate, 95th C ong., 2d Sess. 60-67 (1978) ("H earing").
   5 Id., at 64.
   «/</.. at 61.
   7 Id., at 64.

                                                 761
protection clause in the second sentence and the prohibition against
discrimination in the third sentence is unclear.

2. Article I, § 3: Right o f Privacy

   This section seems to create an absolute right of privacy that cannot
be limited or defined by statute. Again, it is not clear whether this
clause is directed only at governmental action or also at private action.
Moreover, while under Article 1, § 4 of the Virgin Islands constitution
the right to know provided for in that section would yield to the right
of privacy, the constitution does not attempt to solve potential conflicts
between the “absolute” right of privacy under § 3 and the freedom of
speech and of the press guaranteed by Article I, § 2 of the Virgin
Islands constitution and the First Amendment to the Constitution of the
United States.8 C f, New York Times v. Sullivan, 376 U.S. 254 (1964).

3. Article I, § 4: Right to Know

   This section would authorize any person to examine any public
document and observe the deliberations of any agency of the govern­
ment subject to reasonable limitations, as may be provided by law. It is
not clear whether the term “ reasonable limitation as may be provided
by law” refers only to statutory limitations to be enacted in the future
or whether it includes existing statutory and common law restrictions
on the access to documents and deliberations. If the former interpreta­
tion is the correct one, all public documents, including classified docu­
ments, and all deliberations of governmental bodies, including courts,
grand juries, and petit juries, would be open to the public pending the
enactment of the pertinent legislation. Considering the controversial
nature of the subject matter, the adoption of such legislation may take
some time. And even then there may be complex litigation as to
whether the statutory limitations are reasonable.

4. Article I, § 5: Searches and Seizures

   The third sentence, which prohibits the interception of communica­
tions unless authorized by warrant, would in its breadth appear to
require the use of warrants even for the one-party consensual intercep­
tion of communications. In view of the preemption of this field by
chapter 119 of Title 18, United States Code, this section is plainly
limited to prosecutions under local law and should not affect federal
prosecutions.


   * T h e Bill o f R ights for the V irgin Islands em bodied in its O rganic A ct expressly extends the First
A m endm ent to th e C onstitution o f the U nited States to the V irgin Islands w ith “ the same force and
effect there as in the U nited States o r in any State o f the U nited S tates." 48 U.S.C. § 1561.


                                                  762
5. Article I, § 10(e): Child Labor

  This subsection prohibits child labor in certain instances but does not
define the term “child” by reference to age.

6. Article I, § 15: Implementation o f Rights

   The second sentence gives the Senate the power to provide by law
for the implementation and enforcement of this article. This sentence
raises doubts whether and to what extent the provisions of the Bill of
Rights are self-executing, and whether they require statutory implemen­
tation in order to become effective. This point should be clarified.

7. Article IX, § 1(b): Free Education

   The third sentence of this subsection provides that public elementary
and secondary education shall be “essentially” free. The word “essen­
tially” is undefined and may well become the source of needless and
time-consuming litigation.

8. Article X, § 7: Right to a Healthful Environment

   According to this section, every person has the right to a healthful
environment subject to reasonable limitations, as provided by law. This
right may be enforced “against any party subject to reasonable limita­
tions as may be provided by law.” The effect of this broad provision is
to confer constitutional dimensions to the law of nuisances and to invite
litigation to determine whether statutory limitations on this constitu­
tional right are or are not reasonable.9

                                          III. Citizenship

   Article III, § 1 of the constitution defines the term “Virgin Islander”
as a person born in the Virgin Islands or a descendant of at least one
parent who was born in the Virgin Islands. The term Virgin Islander
does not appear anywhere else in the constitution; therefore, its inclu­
sion would not appear to have any legal consequences. On the other
hand, its presence could encourage the enactment of discriminatory
legislation favoring Virgin Islanders.
   Section 2, Article III defines, the term “citizens of the Virgin Is­
lands.” We must comment adversely on this section because the defini­
tion of that term is preempted by federal law and because § 2 is in
conflict with that law.

   9W c have been advised that this section is based on A rticle XI o f the Illinois C onstitution o f 1970.
T here has been a substantia] am ount o f litigation involving that article, but in the time available w e
have been unable to assess the possible implications o f that litigation in the context o f the V irgin
Islands constitution assuming, arguendo, that the Virgin Islands' courts w ould interpret this provision
in a w ay similar to the interpretation given by the Illinois courts to their provision.

                                                   763
   The first sentence of the first section of the Fourteenth Amendment
 provides that “all persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and
 the State in which they reside.” Concededly, the direct applicability of
 the Fourteenth Amendment to the territories has not been settled as
 yet. See, e.g.. District o f Columbia v. Carter, 409 U.S. 418, 423 (1973);
Examining Board v. Flores de Otero, 426 U.S. 572, 601 (1976); Torres v.
Puerto Rico, 442 U.S. 465, 469-71 (1979).10 However, the Bill of Rights
of the Virgin Islands contained in the Organic Act specifically extends
to the Virgin Islands the Privileges and Immunities Clause of the
second sentence of § 1 of the Fourteenth Amendment with “the same
force and effect there as in the United States or any State of the United
States.” 48 U.S.C. § 1561. One of the privileges and the immunities of a
citizen of the United States is the privilege to be a citizen of the State
in which he establishes his residence. The Slaughter-House Cases, 83
U.S. (16 Wall.) 36, 80 (1872). Citizenship in a state or a territory such
as the Virgin Islands to which the Privileges and Immunities Clause of
the Fourteenth Amendment extends accordingly is preempted by fed­
eral law and exists without reference to or interference by state consti­
tutions or laws. United States v. Hall, 26 Fed. Cas. 79, 81 (C.C.S.D.
Ala. 1871) No. 15,282. As the court held in the Slaughter-House Cases,
supra, at 95, “[a] citizen of a State is now only a citizen of the United
States residing in that State.”
   Moreover, § 2 of Article III is inconsistent with the Citizenship
Clause of the Fourteenth Amendment. That clause has been interpreted
as follows:
           1. Only a citizen of the United States can be a citizen of a
              State or Territory. The Slaughter-House Cases, supra, at 95;
               United States v. Hall, supra, at 81; Colgate v. Harvey, 296
              U.S. 404, 427 n.3 (1935); Sharon v. Hill, 26 F. 337, 343
              (C.C.D. Cal. 1885); Factor v. Pennington Press, Inc., 230 F.
              Supp. 906, 909 (N.D. 111. 1963);
           2. A citizen of the United States becomes a citizen of the State
              or Territory in which he resides immediately upon the estab­
              lishment of his residence therein. Morris v. Gilmer, 129 U.S.
              315, 328 (1889); Paudler v. Paudler, 185 F.2d 901, 902 (5th
              Cir. 1950), cert, denied, 341 U.S. 920 (1951); and
           3. A citizen of a State or Territory loses his citizenship therein
              when he establishes another residence. Paudler v. Paudler,
              supra, 185 F.2d at 902 and authorities cited therein.
Section 2 is inconsistent with those federally established rules of state
citizenship. Section 2(a) would provide that all persons born in the

   10    W e note that the D epartm ent o f Justice did not participate as a party or amicus curiae in these
cases.


                                                  764
Virgin Islands and subject to its jurisdiction are citizens thereof. It does
not comply with the federal requirement that citizenship in a State or
Territory is contingent on U.S. citizenship 11 and on residence in the
Territory.
   Section 2(b) would provide that citizens of the United States who
were born outside the Virgin Islands become citizens of the Virgin
Islands only after they have been domiciled there for at least one year.
This is inconsistent with the federal constitutional requirement that a
citizen of the United States becomes the citizen of a State or Territory
immediately upon the establishment of his residence therein.12 The one-
year residence requirement for the acquisition of Virgin Islands’ citizen­
ship is of particular importance in view of Article IV, § 1 of the
constitution, pursuant to which the right to vote is conditioned on
Virgin Islands’ citizenship. The combination of Articles III, § 2(b) and
IV, § 1 thus has the practical effect of subjecting the right to vote in
the Virgin Islands to a one-year durational residence requirement. The
Supreme Court has found such a requirement to be unconstitutional.
Dunn v. Blumstein, 405 U.S. 330 (1972).
   Section 2(c) would in effect provide Virgin Islands’ citizenship to all
those who are United States citizens pursuant to § 306(a)(1) of the
Immigration and Nationality Act, 8 U.S.C. § 1406(a)(1). The subsection
fails to recognize that Virgin Islands’ citizenship is conditioned on
residence in the Virgin Islands.
   Section 2(d) would provide for Virgin Islands’ Citizenship contingent
upon the enactment of appropriate federal legislation, presumably legis­
lation granting United States citizenship to certain persons born in the
Virgin Islands who resided outside the United States between January
17, 1917 and June 28, 1932 (§ 306 of the Immigration and Nationality
Act, 8 U.S.C. § 1406). This subsection is defective because it does not
limit Virgin Islands’ citizenship to those who reside in the Virgin
Islands and does not require continued United States citizenship. F ur­
thermore, this subsection would deny Virgin Islands’ citizenship to
persons who are citizens or subjects of another country, although they
are citizens of the United States.



   11 Pursuant to § 306 o f the Im m igration and N ationality A ct, 8 U.S.C. § 1406, not all persons born
in the V irgin Islands prior to February 25, 1927, are citizens o f the U nited States and some persons
born in the V irgin Islands as U nited States citizens may subsequently have lost that citizenship under
§ 347 o f the Im m igration and N ationality A ct, 8 U.S.C. § 1481.
   12 O ur attention has been directed to § 5(a) o f the Puerto R ico Federal R elations A ct, 48 U.S.C.
§ 733a, w hich imposes a one-year residence requirem ent on the acquisition o f Puerto Rican citizenship
by citizens o f the U nited States. This provision was enacted by C ongress (A ct o f M arch 4, 1927, § 2,
44 Stat. 1418) and not by a T errito ry to w hich the Privileges and Immunities Clause o f the Fourteenth
A m endm ent has been extended. W e express no opinion w h eth er C ongress could constitutionally
impose a one-year residence requirem ent in the V irgin Islands.

                                                  765
                                IV. Composition of the Senate

   Article V, § 2 provides that the Senate, the unicameral legislature of
the Virgin Islands, shall consist of fifteen members, that there shall be
no more than four senators elected at-large, and that the legislative
districts of St. Croix, St. John, and St. Thomas shall each be repre­
sented. Since the number of inhabitants of St. John is much smaller
than that of the other two islands, the requirement that there shall be at
least one Senator from St. John potentially violates the one-man-one-
vote rule.13 W hether such a violation would ultimately occur would
likely turn on specific facts in existence at that time. The one-man-one-
vote rule does not require absolute equality. It permits some deviations
designed to recognize the integrity of political subdivisions, or the
recognition of natural or historical boundary lines. See, e.g., Reynolds v.
Sims, 377 U.S. 533, 574-75, 579-81 (1964); Swann v. Adams, 385 U.S.
440, 444 (1967). See also S. Rep. No. 433, 94th Cong., 1st Sess. 69
(1975) (discussing with approval a similar departure from the one-man-
one-vote rule in § 203(c) of the Covenant with Northern Mariana Is­
lands, Pub. L. No. 94-241, 90 Stat. 265, 48 U.S.C. § 1681 note).
   Article V does not establish a term for the senators and does not
provide that their terms are to be determined by statute.
   V. Residence Requirement for the Governor and Lieutenant Governor

   Article VI, § 3(e) of the constitution provides that the governor and
lieutenant governor must have been domiciled in the Virgin Islands for
fifteen years, five of which must immediately precede the date of taking
office. This provision exceeds by one year the residency requirement
for the President of the United States (U.S. Const. Art. II, § 1, cl.. 4)
and by one-half the longest existing residence requirement for state
governors.14
   The validity of this provision is questionable. The Supreme Court has
held that candidates for public office “do have a federal constitutional
right to be considered for public service without the burden of invidi­
ously discriminatory disqualifications.” Turner v. Fouche, 396 U.S. 346,
362 (1970); Bullock v. Carter, 405 U.S. 134, 142-44 (1972). In Illinois
Election Board v. Socialist Workers Party, 440 U.S. 173, 185 (1979), the
Court pointed out that where the access to the ballot is concerned 15

    13 W e are not aw are o f any reported case specifically applying the one-m an-one-vote rule to the
T erritories. T h e V irgin Islands' Bill o f Rights, how ever, specifically extends the Equal Protection
C lause o f the Fou rteen th A m endm ent to the V irgin Islands to have the same force and effect there as
in a State. 48 U.S.C. § 1561.
    14 A ccording to Chimento v. Stark, 353 F. Supp. 1211, 1217 (D .N .H . 1973), a ffd 414 U.S. 802
(1973), in 1973, 43 states had residence o r citizenship requirem ents for the office of governor: ranging
from ten years (Louisiana, M issouri, and O klahom a) to one year (M innesota).
    16 Bullock v. Carter, supra, at 142-43, explained that in the area o f placing burdensom e limitations
on the qualification o f candidates, “ the rights o f voters and the rights o f candidates d o not lend
them selves to neat separation; law s that affect candidates alw ays have at least some theoretical,
co rrelativ e effect on v oters.’*


                                                   766
the State, even where it seeks to protect a legitimate interest, has to
adopt the least drastic means to achieve that end.
   The Supreme Court has not as yet passed on durational residence
requirements for the holding of office. It has summarily affirmed three
decisions which upheld five- to seven-year residence requirements for
the offices of state senator and state governor. Chimento v. Stark, supra,
(seven years; state governor); Kanapaux v. Ellisor (D.S.C. unreported),
a ffd 419 U.S. 891 (1974) (five years; state governor); Sununu v. Stark,
383 F. Supp. 1287 (D.N.H. 1974), a ffd 420 U.S. 958 (1975) (seven
years; state senator).
   The official analysis of the constitution gives the following reasons
for the fifteen-year residence requirement:
       While this domiciliary requirement is longer than that for
       similar offices in the States of the Union, it is intended to
       insure to the greatest extent possible familiarity with the
       particular problems of the Virgin Islands. Such familiarity
       is not as easily acquired as it might be in the continental
       United States, among other reasons, due to the Virgin
       Islands’ status as an unincorporated territory of the United
       States and to its geographical, historic, social, economic
       position and unique culture as a group of small islands in
       the Eastern Caribbean.
   In Chimento, supra, the district court similarly justified the seven-year
residency requirement for the Governor of New Hampshire by refer­
ence to the need of that officer to be familiar with and exposed to the
conditions, problems, and needs of the State and the various require­
ments of its population. The court, however, conceded that the seven-
year requirement “may approach the constitutional limit.” 353 F. Supp.
at 1217. It may be significant, at least under the Chimento court’s
analysis, that in 1972, New Hampshire had nearly 780,000 inhabitants
and covered a land area of 9,033 square miles, id. at 1215 n.8, while
according to the 1970 census, the Virgin Islands had 62,000 inhabitants
and covered 133 square miles.
   On the other hand, there are several instances in which federal courts
have struck down residence requirements for state or local officials.
Thus, the Eighth Circuit, in Antonio v. Kirkpatrick, 579 F.2d 1147, 1151
(8th Cir. 1978), held that a ten-year residency requirement for the office
of State Auditor for the State of Missouri constituted a denial of equal
protection and did not bear a rational relationship to a legitimate state
end. The district court, in Billington v. Hayduk, 439 F. Supp. 975, 979
(S.D.N.Y.), a ffd on other grounds, 565 F.2d 824 (2d Cir. 1977), invali­
dated “as impermissible under the Equal Protection Clause” a five-year
residence requirement for the office of County Executive for W'est-
chester County, New York. According to the 1970 census, that county
had 984,000 inhabitants and covered 443 square miles. The district
                                   767
court, in Alexander v. Kammer, 363 F. Supp. 324 (E.D. Mich. 1973),
held that a five-year residence requirement for the Office of City
Commissioner of the City of Pontiac, the population of which is similar
to that of the Virgin Islands, was not supported by a compelling
governmental interest. And in Brill v. Carter, 455 F. Supp. 172 (D. Md.
 1978), the district court held unconstitutional a four-year residence
requirement for the office of councilman for Anne Arundel County
(300,000 inhabitants, 423 square miles).16
   The argument supporting the fifteen-year requirement would be that
the responsibilities of the G overnor—even of a small Territory—differ
substantially from those of the head of a county—even of a large one—
and that the conditions in the Virgin Islands are quite different from
those that prevail on the mainland. These considerations would support
an extended durational residence requirement if the latter is based, as is
assumed in many cases on the need of the prospective official to
acquaint himself with the problems of the area and its inhabitants and
to have extended exposure to the electorate. These points, however, are
counterbalanced, at least in part, by the small size of the Virgin Islands
and its population. We therefore believe there is every reason to ques­
tion whether the courts will uphold a residence requirement that is
more than twice as long as the New Hampshire seven-year period,
which the Chimento court, supra, had characterized as probably
“approaching] the constitutional limit.”
   On the other hand, we do not believe that the various five-year
residence requirements provided for in the constitution should give rise
to serious constitutional problems. See, e.g., Article V, §4(e) (senator);
Article VII, §6(b) (judge); Article XI, §4(b) (auditor general).

                                       VI. Judicial Branch

  Article VII, §§ 1 & 2 of the constitution provide for an appellate
court. This provision is in conflict with § 2(b)(6) of the Enabling Act,
pursuant to which the “system of local courts provided for in the
constitution must be consistent with the Revised Organic Act of the
Virgin Islands.” The pertinent provisions of the Revised Organic Act,
§§22 & 23, 48 U.S.C. §§ 1612, 1613 do not provide for a local appellate
court; appeals from the local courts go to the federal district court.
  Article VII, § 2 contains defects in addition to its being inconsistent
with the Enabling Act. The last sentence provides that appeals from
decisions of the appellate court on federal questions will go to the
United States Court of Appeals for the Third Circuit unless Congress
provides otherwise. The United States courts of appeals, however, are
purely statutory courts and have only such jurisdiction as is conferred
on them by Congress. See, e.g., Gialde v. Time, Inc., 480 F.2d 1295,

  16 T h e opinion contains an analysis o f m any pertinent decisions. 455 F. Supp.. at 175.

                                                  768
  1298 (8th Cir. 1973). A territorial constitution therefore cannot confer
 appellate jurisdiction on a United States court of appeals. Consequently,
 there would be no federal forum for the review of decisions of the
 appellate court involving federal questions. This raises a problem simi­
 lar to that involved in Guam v. Olsen , 431 U.S. 195, 201-04 (1977). The
 Supreme Court held in Guam that in the absence of a “clear signal
 from Congress,” a Territory cannot establish a court if its decisions
 involving federal questions are not reviewable by a court established
 under Article III of the Constitution.17 Hence, even if § 2(b)(6) of the
 Enabling Act had not prohibited the establishment of an appellate
court, the Virgin Islands still could not create such a court in the
absence of federal legislation providing for the review of its decisions
 involving federal questions in an Article III court.18
    The judicial provisions of the constitution raise an additional prob­
lem. Section 5 of the Transitional Schedule would establish an interim
appellate court consisting of the two district judges for the Virgin
 Islands and a chief judge appointed pursuant to the provisions of the
constitution. According to the constitution, the appellate court would
have several not strictly judicial functions, such as to promulgate re­
apportionment plans (Article V, § 3(b)), to sit as a court of impeach­
ment (Article V, § 12), and to determine questions involving the disabil­
ity of the Governor and Lieutenant Governor (Article VI, § 9(b)).
Since territorial judges are not Article III judges, they could be vested
with nonjudicial functions. Nevertheless, the involvement of federal
judges in those delicate local political issues may become a source of
embarrassment. Moreover, since the appellate court would act as an
administrative body in those situations, its decision could conceivably
be subject to judicial review in the federal district court, composed of
the same judges who handed down the decision in their capacity as
members o f a territorial judicial body performing nonjudicial functions.
    Article VII, § 4 establishes a commission to deal with judicial mis­
conduct and disability. In view of its serious impact on judicial inde­
pendence, this section should have been drawn with greater precision.
It lacks provisions for the selection of the commission and for the
qualification of its members, as well as any standards for the discipline,
censure, suspension, removal, and compulsory retirement of judges. The
section provides for the “appeal” of decisions of the judicial commis­

    17 Indeed, (he C ourt indicated that constitutional issues might be presented if C ongress sought to
deny litigants in a local territorial court access to an A rticle III court for (he apppellate review of
local-court decisions. 431 U.S. at 204.
    18 T h e second sentence o f A rticle V II, § 2 provides that the decisions o f the appellate c ourt on non-
federal questions shall be final, unless federal law provides for their review by the Suprem e C ourt of
the United States. In o u r view, it is up to C ongress to determ ine w hich federal court, if any, shall
review cases decided by the Virgin Islands appellate court w hich d o not involve federal questions. If
Congress should decide that there should be such review , it w ould generally be m ore appropriate that
it be had, at least initially and as a m atter o f right, in the court o f appeals rather than in the Suprem e
C ourt.

                                                     769
sion. In case of actions taken by the commission against appellate
judges, recusations may result in a lack of quorum in the appellate
court, or require under the necessity doctrine the participation of
judges who ordinarily would have to disqualify themselves in view of
their connection or involvement with the subject matter of the appeal.
This problem, however, is inherent in judicial discipline proceedings
and not confined to the Virgin Islands. The implementing legislation
could provide for the temporary assignment to the appellate court of
trial court judges to sit in lieu of disqualified appellate judges.

    VII. Tax Administration and Tax Exemption of Territorial Bonds

  Article XI, § 2 provides that:
       Laws shall be enacted to administer and enforce the
       income tax and the federal tax laws applicable to the
       Virgin Islands.
This section must be read in the context of § 2(b)(1) and (4) of the
Enabling Act, which limits the constitution to subject matters relating
to local self-goverment.
   The Virgin Islands presently operates under a so-called “mirror
system” of taxation with the Internal Revenue Code administered and
enforced by the Virgin Islands as a territorial income tax. Act of
July 12, 1921, § 1, 42 Stat. 123 (48 U.S.C. 1397). Dudley v. Commis­
sioner o f Internal Revenue, 258 F.2d 182 (3d Cir. 1958). Under the
present law a constitutional provision to enact territorial laws to admin­
ister and enforce this territorial income tax would not be objectionable.
There are, however, indications that the income tax will be “federal­
ized” in the Virgin Islands. President Carter proposed in his Message
on Federal Territorial Policy of February 14, 1980, Pub. Papers of
Jimmy Carter 317, 322 (1980), that legislation be enacted making the
Internal Revenue Code directly applicable to the territories for income
tax purposes and providing that the Internal Revenue Service, rather
than the territories, be responsible for its administration and enforce­
ment. The Department of the Treasury has drafted a proposed Territo­
rial Tax Act to implement the presidential message which is presently
under consideration by the Office of Management and Budget. Legisla­
tion to that effect has been introduced in Congressmen S. 2017, 96th
Cong., 1st Sess. (1979). We have also been advised that a pertinent
provision may be inserted in the current Territorial Omnibus Bill now
pending in the House of Representatives. Should this legislation be
enacted, the income tax laws would cease to be a matter of self-
government in the Virgin Islands and the reference in this section to
the income tax laws would become inconsistent with the Enabling Act.
   To the extent that Article XI, § 2 would provide for the enactment
of legislation to administer and enforce “the federal tax laws applicable
                                   770
to the Virgin Islands,” the section deals with a subject matter which
does not relate to self-government; consequently it violates the terms of
the Enabling Act.
   The second paragraph of Article XI, § 3 would exempt the bond
issues of the Virgin Islands, and specifically the interest thereon, from
taxation by the Federal Government, any State, Territory, or the Dis­
trict of Columbia. The exemption of the bond issues of the Virgin
Islands from taxes imposed by the Federal Government or the States,
Territories, or the District of Columbia clearly is not a matter of
local self-government and therefore not authorized by the Enabling
Act. (See §§ 2(b)(1),(d)). Only Congress can grant such tax exemption.
                          VIII. Continuation of Laws

  Section 3 of the Transitional Schedule provides:
         Laws, executive orders, and regulations . . . that are in­
         consistent with this Constitution shall be void to the
         extent of such inconsistency.
This sentence does not in terms limit its scope to laws, executive
orders, and regulations relating to matters of local self-government. It
would be unauthorized if it purported to apply to matters over which
the Federal Government retained jurisdiction. The draft official analysis
of the constitution 19 states that this section does not cover laws,
executive orders, or regulations that are beyond the authority of the
Virgin Islands, such as federal laws. The need to rely on the legislative
history to ascertain the scope of a constitutional clause, however, is an
undesirable drafting technique, especially in light of the frequently
adhered to canon of statutory construction which prohibits the use of
interpretative materials where a text appears to be unambiguous on its
face.

 IX. Summary and Effect of the “Deemed” Approval of the Constitution

   In summary, the constitution does not expressly comply with the
requirements of the Enabling Act to recognize the sovereignty of the
United States and the supremacy of its Constitution and laws. More­
over, it raises the following substantial legal issues: (1) questions regard­
ing Virgin Islands’ citizenship; (2) the durational residence requirements
for the Governor and Lieutenant Governor; (3) the appellate court; and
(4) the fiscal provisions. In addition, some of its provisions are drawn
so loosely as to invite vexatious and possibly paralyzing litigation. In
this category are the provisions guaranteeing the inviolability of the
dignity of the human being, the absolute right of privacy, and the right
to a healthful environment.

  19 See note 2, supra.


                                     771
    In 1978, Congress did not take any action on the constitutions drafted
 by the constitutional conventions of Guam and the Virgin Islands
 within the 60-day period provided for in § 5 of the Enabling Act. The
 two constitutions accordingly were submitted to the voters of Guam
 and the Virgin Islands, respectively, and both of them were defeated.
 In view of the possibility that Congress again will fail to pass a joint
 resolution modifying the previously mentioned legal defects of the
 constitution, it appears appropriate to consider the legal consequences
 of the “deemed” approval of the constitution resulting from congres­
 sional failure to act.
    Basically, Congress can take legal action only in the manner pro­
 vided for in Article I, § 7 of the Constitution, i.e., by the concurrence
of both Houses to a bill or resolution and its presentation to the
 President. Inaction of Congress therefore cannot have any legal effect,
except as, in this case, as the occurrence of a condition which permits
the submission of the constitution to the qualified electors of the Virgin
 Islands. Taking this view, the inaction of Congress would not have any
curative effect on the defects of the constitution.
    The result, however, would be no different if it were assumed
arguendo that the omission of Congress to object to the failure of the
constitution to comply with the requirements of the Enabling Act has
the effect of waiving that noncompliance. Any such waiver would
logically be limited to the provisions of the Enabling Act itself. It could
not override constitutional requirements such as those involved in the
issues relating to the Virgin Islands’ citizenship arid the durational
residence requirements of the Governor or Lieutenant Governor. Simi­
larly, such waiver could not override other existing statutes or serve as
a substitute for the enactment of a statute. Thus, in connection with the
appellate court issue, it could possibly be argued that the “deemed”
approval of the constitution overcomes the requirement of the Enabling
Act that the court system be consistent with the existing one, hence,
that the constitution could provide for an appellate court. The supposed
waiver, however, could not have the effect of granting a federal appel­
late court jurisdiction to review the decisions of the Virgin Islands’
appellate court. That can be done only by positive legislation. Again,
the supposed waiver could not override or modify the existing statutes
providing for the administration of federal tax laws by federal agencies,
or take the place of a statute granting Virgin Islands bonds exemption
from federal or state taxation.

                                         A lan A . P arker
                                     Assistant Attorney General
                                     Office o f Legislative Affairs


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