To the Congress of the United States:
In accordance with the provisions of Section 5 of the Act of October 21, 1976 (Public Law 94-584), I am hereby transmitting for the consideration of the Congress a proposed constitution for the Territory of Guam. The constitution, drafted by a territorial constitutional convention, was officially submitted to the Secretary of the Interior, who accepted it on my behalf, by the Honorable Ricardo J. Bordallo, Governor of Guam, on March 1, 1978.
Public Law 94-584 requires that I submit the constitution to the Congress, along with my comments. I am confident that the Congress will share my belief that the basic principles incorporated into the constitution provide a firm foundation upon which the people of Guam can assume greater responsibilities of local self-government in political union with the United States. Because it is their constitution, and must be respected as such, I shall confine my comments to those aspects of the document which relate directly and significantly to the territorial-Federal relationship. Accordingly, I would like to bring to the attention of the Congress the following aspects of the proposed constitution:
—Contrary to the express requirement of Section 2(b)(1) of Public Law 94584 (the Enabling Act), the constitution does not explicitly recognize the sovereignty of the United States over Guam or the supremacy of its laws, a point noted by the Departments of State, Justice, and Interior in their reviews of the document. Accordingly, I ask the Congress to consider complications which could arise with respect to future claims of sovereignty and supremacy should it decline to take any of the corrective actions prescribed in Section 5 of the Enabling Act.
—Article IV, Section 1, of the constitution vests in the elected Governor responsibility for the faithful execution of the Constitution and laws of the United States applicable to Guam. In view of the Supreme Court's decision in Buckley v. Valeo (424 U.S. 1) that persons who enforce the laws of the United States must be appointed in the constitutionally prescribed manner, I ask the Congress to give careful consideration to this provision. Moreover, I suggest to the Congress that responsibility for the execution of Federal law is not a matter of local self-government and invite the Congress to consider whether the inclusion of such a clause, even if deemed constitutionally permissible, could lead to friction between the Governor and the Federal Government.
—Article V, Section 4(a), of the constitution provides for legislative apportionment on the basis of the number of registered voters in each district. I call to the attention of the Congress the Supreme Court's admonition in Burns v. Richardson (384 U.S. 73) and Ely v. Klahr (403 U.S. 108) that the use of voter registration as a basis may perpetuate underrepresentation of groups constitutionally entitled to participate in the electoral process and is permissible only if it produces a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population basis.
—Article X, Section 4, of the constitution would amend the provision in Section 11 of the Organic Act of Guam (48 U.S. 1423a), which imposes public debt limitations on the territory. In light of the territory's fragile local economy and the continued financial responsibility of the Federal Government for Guam, I ask the Congress to give careful consideration to this provision.
In view of its responsibility under the Territories Clause of the United States Constitution, the Congress may wish to review the proposed constitution for Guam on bases other than just the effect of its provisions on the territorial-Federal relationship to which I have limited my comments.
Specifically, the appropriate committees of the Congress may wish to examine whether certain provisions of the Guam constitution are drafted with sufficient clarity to avoid the type of litigation that could preclude effective government. For example, the elevation to constitutional status of certain rights in Article II of the proposed constitution could cause such a result. Under our own system, many of these same rights are provided for by statute, not by the Constitution itself.
Also, the amendment procedure contained in Article XIV of the proposed constitution does not provide for review by the Congress, a requirement which does pertain to the basic document. The Congress may wish to consider the friction which could arise between Guam and the Federal Government should the constitution be amended in a way which would conflict with United States law.
Accordingly, I have directed the Attorney General and the Secretary of the Interior to provide the appropriate committees of both Houses with such technical advice and assistance as may be required. Both Departments have conducted thorough analyses of the proposed constitution and can offer the Congress additional information and recommended changes in language should the Congress choose to take any of the corrective actions prescribed in Section 5 of the Enabling Act.
I trust these comments will be of use to the Congress in its review.
The White House,
April 28, 1978.