A. Recognition of U.S. Sovereignty and the Supremacy of Federal Law 
The Enabling Act requires any proposed constitution for the USVI to 
"recognize" and "be consistent with" United States sovereignty and the 
supremacy of the applicable provisions of the Constitution, treaties, and laws 
of the United States. Enabling Act 2(b)(l), The current proposed constitution, 
like the one initially proposed in 1980, does not include an express statement 
directly satisfying this requirement. Indeed, one provision of the current constitution states, 
without any reference to the U.S. Constitution or federal law, that "[t]his Constitution shall be the supreme 
law of the Virgin Islands," see Constitution of the Virgin Islands of the United States, Fifth Constitutional 
Convention, art. Il, 5 (June I, 2009) ("Proposed Const."), and in several places the proposed constitution 
refers to the USVI's "sovereignty" or "right of self-determination." E.g, id. pmbl. para. 6, art. XII, 2. 
Particularly in light of these provisions, we think it would be preferable if Congress revised—or urged a 
reconvened constitutional convention to revise—the proposed constitution to include a more express 
recognition of U.S. sovereignty and especially of the supremacy of federal law, as Congress did in 
considering the 1980 proposed constitution. Even in its current form, 
though, we conclude, as the Department 
did in reviewing the 1980 proposed 
constitution, that a number of provisions 
in the present proposed constitution 
considered 
together 
bring 
it 
into 
substantial compliance with the Enabling 
Act's requirement that the proposed 
constitution recognize U.S. sovereignty 
and the supremacy of federal law. see DOJ 
Views, 4B op. O.L.C. at 760-61. 
Because the Department's analysis of the 1980 proposed constitution informs our analysis of the 
current proposed constitution, we begin by describing the Department's 1980 analysis and the 
development of that earlier proposed constitution in some detail. The 1980 proposed constitution, like 
the constitution proposed now, included no express statement of federal sovereignty and supremacy. 
And that earlier proposed constitution described "[t]his Constitution and laws of the Virgin Islands 
enacted under it" as "the supreme law of the Virgin 
Islands." See 1980 Constitution at 7. The Justice Department nonetheless concluded that the 1980 
proposed constitution was in "substantial compliance" with subsection 2(b)(1) of the Enabling Act 
because other provisions effectively acknowledged United States sovereignty and the supremacy of 
federal law. See DOJ Views, 4B Op. O.L.C. at 760-61. As the Department explained, 
the 1980 proposed constitution's preamble included a statement 
"declar[ing] that the Virgin Islands assume 'the responsibilities 
of self-government in political union with the United States,"' See 
id. at 760 (quoting 1980 proposed constitution). In prior testimony 
regarding a proposed constitution for the territory of Guam, a 
Justice Department witness had observed that "[n]early 200 years 
of political history have established that political union with the 
United States necessarily carries with it the recognition of the 
sovereignty of the United States and the supremacy of its laws," 
and that a statement in the preamble of the Guam constitution 
referring to "political union" with the United States was therefore 
"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." Constitution of Guam: Hearing Before the Senate 
Committee on Energy and Natural Resources, 95th Cong. 64 (1978) (statement of Herman Marcuse, 
Attorney-Adviser, Office of Legal Counsel, Dep't of Justice). By the same token, the 
Department concluded that the reference to "political 
union" in the 1980 USVI proposed constitution sufficiently 
recognized federal sovereignty and supremacy to satisfy the 
Enabling Act. See DOJ Views, 4B Op. O.L.C. at 761. The 
Department further observed that a draft official analysis of the 1980 proposed constitution interpreted 
its preamble as recognizing U.S. sovereignty and that the proposed 1980 
USVI constitution elsewhere limited the legislative power of the USVI government to "subjects 
consistent with . . . the Constitution and laws of the United States applicable to the Virgin Islands." See 
id. at 760; see also Hr'g on Fourth USVI Constitution at 58 (reproducing draft official analysis); 1980 
Constitution at 7. 
 In accordance with the Justice Department's conclusions, the President stated in his message 
transmitting the 1980 proposed constitution to Congress that "[t]he document implicitly recognizes the 
sovereignty of the United States and the supremacy of United States law over locally-enacted 
legislation, and is, therefore, in substantial compliance with the pertinent provision of the Enabling Act 
that established the procedure for the drafting of a constitution for the Virgin Islands." 1980 Presidential 
Message at iii. 
Discussions in Congress led to a suggestion that an additional reference to U.S. 
sovereignty and federal supremacy be added. See Hr' g on Fourth USVI Constitution at 173, 194. The 
USVI constitutional convention then proposed and Congress adopted an additional clause qualifying the 
draft constitution's statement that the USVI constitution and laws enacted under it constituted the "supreme 
law of the Virgin Islands" so as to assert such supremacy only "[t]o the extent not inconsistent with the 
Constitution and laws of the United States." See S. Rep. No. 9766, at 4; H.R. Rep. No. 97-25, at 2, 11; 
Pub. L. No. 97-21, 95 stat. at 109. 
The current proposed USVI constitution appears no less compliant with subsection 2(b)(1) of the 
Enabling Act than the constitution originally proposed in 1980, if not also the revised version of that 
constitution ultimately approved by Congress. Much as the preamble of the 1980 constitution described 
the USVI as "assuming the responsibilities of self-government in political union with the United States," 
1980 Constitution at 1, the preamble of the current proposed constitution declares that the USVI is 
"assuming the responsibilities of self- government as an unincorporated territory ofthe United States." 
Proposed 
Const. 
pmbl. 
para. 
I 
(emphasis 
added). The 
term 
"unincorporated territory of the United 
States," like the term "political union," 
carries a well-established meaning signifying 
recognition of the supremacy of the United 
States government. Territorial Court ofthe Virgin Islands v. Richards, 673 F. 
Supp. 152, 157 (D.V.I. 1987) (identifying the USVI as an "unincorporated territory" and describing 
Congress's authority over the territory as "plenary"), aff'd, 847 F.2d 108, 112 (3d Cir. 1988); Harris v. 
Boreham, 233 F.2d 1 10, 1 13-14 (3d Cir. 1956) (describing Congress's "sovereignty" over 
"unincorporated territories, such as the Virgin Islands"); S. Rep. No. 97-66, at 4 (report on the 1980 
constitution describing the USVI as "an unincorporated territory of the United States subject to the plenary 
authority of the Congress"). Indeed, the Constitution itself prescribes that "[t]he Congress shall have Power 
to dispose of and make all needful Rules and Regulations" with respect to United States territories. U.S. 
Const. art. IV, 3, cl. 2. The current proposed constitution's 
acknowledgment of the USVI's status as an 
"unincorporated territory of the United States" 
thus implies recognition of the United States' 
sovereignty over the US VI. 
Furthermore, the current proposed constitution also 
recognizes congressional authority over the USVI by describing the 
1917 treaty between the United States and Denmark as 
"confirm[ing]" that Congress may "determine(]" the "civil rights 
and political status of the inhabitants" of the USVI, see Proposed Const. 
pmbl. para. 3; it limits the legislative power of the USVI to "subjects of legislation consistent with . . . 
the Constitution and laws of the United States," just as the 1980 proposed constitution did, see id. art. 
V, 1; 1980 Constitution at 7; and in certain other provisions it acknowledges the applicability of federal 
law, see, e.g , Proposed Const. art. IV, 4 (prohibiting any "political or religious test" for public office 
"other than an oath or affirmation to support the Constitution and laws of the Virgin Islands, and the 
Constitution and laws of the United States"); id. art. VIl, 2 (providing that decisions of the 
USVI Supreme Court "on questions arising under this Constitution and the laws of the Virgin Islands 
shall be final, except as Federal law may provide for review of such decisions by courts of the United 
States"); id. art. VIl, 3 (requiring rules in USVI courts to be consistent with the United States 
Constitution and federal laws). It is frue that the current proposed constitution also states that it "shall 
be the supreme law of the Virgin Islands." See id. art. Il, 5. But while, as noted above, Congress revised 
the similar supremacy provision in the 1980 proposed constitution to declare that "[t]his Constitution 
and laws of the Virgin Islands enacted under it shall be the supreme law of the Virgin Islands" only 
"[t]o the extent not inconsistent with the Constitution and laws of the United States," Pub. L No. 97-21, 
95 Stat. at 109; see also Hr'g on Fourth US VI Constitution at 173, 194; S. Rep. No. 97-66, at 4; H.R. 
Rep. No. 97-25, at 2, 11, the President and the Department of Justice 
deemed the 1980 proposed constitution in "substantial 
compliance" with the Enabling Act even without this 
change Moreover, the original supremacy provision in the 
1980 proposed constitution was arguably less consistent 
with United States sovereignty and federal supremacy than 
the current provision. The supremacy clause of the 1980 proposed constitution 
appeared in a provision addressing legislative powers and asserted the supremacy not only of the 
proposed constitution, but also of "laws of the Virgin Islands enacted under it." See 1980 Constitution 
at 7. In contrast, the supremacy provision of the current proposed 
constitution appears in a stand-alone section and refers only to the 
USVI constitution. See Proposed Const. art. 115 5. It may therefore 
be reasonably understood to indicate only that the USVI 
constitution is "the supreme law of the Virgin Islands" in the sense 
Of superseding other USVI laws but not federal law. Cf Maine Const. art. 
X, 6 (referring to the Maine constitution as 'the supreme law of the State"); Iowa Const. art. XII, 1 
("This constitution shall be the supreme law of the state, and any law inconsistent therewith, shall be 
void."). 
Accordingly, while we think it would be 
preferable if Congress revised—or urged a 
reconvened constitutional convention to revise—
the proposed constitution to include a more 
express recognition of U.S. sovereignty and 
especially of the supremacy of federal law, as 
Congress did in considering the 1980 proposed 
constitution, we believe the proposed constitution 
is in substantial compliance with subsection 
2(b)(1) of the Enabling Act. DOJ Views, 4B Op. 
O.L.C. at 761.