Response to Pete Thelen's December 3, 2021 letter to the Peninsula Pulse
Dear Pete,
I saw your letter, “The Cherry Republic” at https://doorcountypulse.com/the-cherry-republic/ back in 2021 and it seemed like a different idea, interesting enough, and it reminded me of how the Florida Keys have the Conch Republic.
More recently, I encountered a rather thorough blog at https://eldoradostate.substack.com/. The blog goes into historical and legal arguments about whether a county can legally succeed from its state in order to form a new state with only the permission of Congress, against the will of the original state. This appears to be unconstitutional because of Article IV, Section 3, Clause 1 of the US Constitution, which says:
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
The blog writers from El Dorado County acknowledge this clause, but also think that there could be a legal workaround to it.
El Dorado County’s situation is different than Door County’s, because its existence predates the state of California. It wasn’t created by the state like Door County was. Because of this, Door County cannot succeed from Wisconsin, according to the blog’s theory. Yet since Brown County predated the state of Wisconsin, it could succeed under the theory discussed on the blog.
This topic is not purely for blogosphere purposes, because the theoretical power to succeed can be used as a form of soft power, even without actually succeeding. If Wisconsin treated Brown County badly enough, they could try to extract concessions from the state by threatening to succeed, if of course they really thought they could.
Brown County was once one of two counties covering the entire area of what is now Wisconsin. Extending the blog’s theory somewhat, if Brown County was succeeding with only the permission of Congress, it would be possible for the Brown County board or Brown State legislature to repeal the acts which split counties off of it, such to create Door County. Then what is now Door County could legally become part of Brown again, and leave Wisconsin along with it.
Going over the original act which admitted Wisconsin to the United States, https://li.proquest.com/elhpdf/histcontext/9-Stat.-233,-Chap.-50.pdf, there is an interesting phrase in the whereas clause that is similar to one of the items discussed in the blog. The phrase in question admits Wisconsin as a state with "a constitution and State government, which said constitution is republican".
Whereas clauses are often not considered legally binding, especially for a judge who is a strict textualist. But it is still possible that the text could be considered binding by courts, especially since it is related to the Guarantee Clause of the US Constitution:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
The blog writers discuss ways that the citizens of El Dorado County are deprived of a republican form of government as part of the justification for succession. For Door County’s situation, similar complaints about un-republican government could focus on excessive use of the line-item veto and the consolidation of political power in the Natural Resources Board. Gerrymandering would be hard for Door County to justify as a complaint, but some might try to find fault with the legislative districts.
In your letter, you described mass open carry as a cause for succession. In theory a mass militia would be restrained by law and public opinion if everyone was part of it. Yet if a particular para-military group exercised power through open carry and a pattern of intimidation, that could result in a loss of republican governance.
It is also possible to go through old Indian treaties and find weaknesses or shortcomings. Native Americans sometimes do this, and think about the what-ifs. Sometimes the arguments get developed enough to end up in court: https://casetext.com/case/oneida-indian-nation-of-ny-v-state-of-ny
In the case of Door County, the 1831 Treaty of Washington has a number of irregularities, both in the written document and shady circumstances surrounding it. Menomonee County was the last county to be formed in Wisconsin, but the Menominee Indian Tribe of Wisconsin could succeed against the will of the State of Wisconsin under another theory, advocated on the political left, by tribal statehood advocates. If this interests you, this is an article promoting it: https://newrepublic.com/article/168333/case-tribal-statehood
If around the same time Congress approved the new state, courts also found the treaty void, this would mean that native title would revert over Door County, and the area would be governed by the new State of Menomonee. This would not be a voluntary returning of real estate, the advocacy of such which I described in an earlier post: https://doorcounty.substack.com/p/vacation-homes-could-be-used-for
I write about this as a legal theory, also understanding that most Indians don’t want this. There are a small number of land-back advocates based outside of Wisconsin, who are interested in taking over large areas of land.
Succession proposals can be fueled by the narcissism of small differences, where similarities between groups serves to make people more narcissistic and hyper-competitive.
The United States can be seen as having begun as a succession from the British Empire, and even today the US and Canadian governments inflame the narcissism of small differences by keeping Machias Seal Island as a disputed territory. Even when the ocean border was delineated to the east, the status of the island was purposely left unresolved. The lighthouse on the island is known for having lighthouse keepers; two Canadian Coast Guard members are kept stationed there in order to prevent Americans from coming and replacing the Canadian flag with an American one. The lighthouse keepers come and go on a 28-day rotation.
A succession movement from Door or Brown counties would also foster the narcissism of small differences elsewhere in Wisconsin and neighboring states. For example, the name “Cherry Republic” is already in use to refer to an area to the east of Door County where cherries are grown in Michigan. If Door County tried to be the Cherry Republic, this could make people in the other Cherry Republic displeased with the approbation of their brand.
The legal arguments for voiding the 1831 treaty and forming a State of Menominee could be at least as strong as the legal arguments for a State of Brown. Yet would anyone in Door County want it? Peninsulas seem fairly protected by geography, but things don’t always end up the way they were originally anticipated. Crimea is an example of this.
In Door County, the use of flags for political causes is an example of the narcissism of small differences. A court case dealing with group flags led to a settlement with the city of Boston for $2.125 million in attorney's fees and other costs. Boston now requires a city council resolution or mayoral proclamation to raise extra flags. Yet if the city allows some political or religious flags, but not others, this may end up in court again, time will tell.
The county board restricted the types of flags on county-owned flagpoles, but Cana Island will continue to have a US Lighthouse Service Pennant; that lighthouses need their flags is something the two Canadian Coast guard members would appreciate.