Cecily Zamora
Martial law is a dramatic departure from normal practice in the United States. It has been declared more than 60 times in US history, mostly by state and local officials. In nearly every state, the governor has the power to impose martial law within the borders of the state. In the US, martial law has been used in a limited number of circumstances, such as after major disasters, like the Great Chicago Fire of 1871, or during riots, like the Omaha race riot of 1919. While the US president does not have the power to declare martial law, Congress might be able to authorize a presidential declaration of martial law.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | In the US, state officials and governors have the power to declare martial law. The US President does not have the authority to declare martial law unilaterally, but Congress might be able to authorize a presidential declaration. |
| When can martial law be declared? | In times of emergency, such as during wars, invasions, civil unrest, riots, or natural disasters. |
| What does martial law entail? | The military temporarily takes over the authority from civilian governments and enforces its own rules. |
| What are the legal considerations? | The US Constitution does not define martial law, but it is closely tied to the right of habeas corpus, which is the right to a hearing and trial on lawful imprisonment. Even under martial law, constitutional rights must be upheld. |
| What are the limitations? | Martial law is subject to judicial review, and individuals can challenge a declaration by seeking injunctive relief in federal court. The Posse Comitatus Act prohibits federal military forces from participating in civilian law enforcement without express authorization from Congress. |
| What are some examples of martial law in the US? | Martial law has been declared in various states and counties in the US, including West Virginia, Hawaii, Alabama, New Orleans, and Texas. |
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What You'll Learn
Who can declare martial law?
In the United States, the power to declare martial law varies across different levels of government. While the US Constitution does not grant the president the authority to unilaterally declare martial law, Congress may be able to authorize a presidential declaration. However, the Posse Comitatus Act prohibits federal military forces from engaging in civilian law enforcement, which includes martial law, without express authorization from Congress.
At the state level, governors have frequently declared martial law within their state borders, as seen in West Virginia, Alabama, and Hawaii. State officials can declare martial law as long as their actions abide by the US Constitution and are subject to review in federal court.
In other countries, the power to declare martial law may lie with different branches of the government. For example, in China, the President was authorized to declare martial law in the 1911 Provisional Constitution. In contrast, the Egyptian parliament had the civilian power to declare a state of emergency before the military took control in 2011. In Switzerland, cantonal (state) authorities can call upon the army for assistance, but this usually requires parliamentary authorization and occurs within the regular legal framework.
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Martial law in the US
In the United States, martial law has been imposed at least 68 times, but only in limited, usually localised areas. The US President does not have the authority to declare martial law, but Congress might be able to authorise such a declaration. The US Constitution does not give the President "conclusive and preclusive" authority over the domestic use of the military, and instead, power is explicitly vested in the legislative branch.
State officials, including governors, do have the power to declare martial law, but their actions must abide by the US Constitution and are subject to review in federal court. There is a dense network of rules in place that means any action taken by the President that is not authorised by statute is likely to be against Congress's wishes.
Martial law has been declared in the US for various reasons, including:
- War or invasion (twice)
- Domestic war or insurrection (seven times)
- Riot or civil unrest (eleven times)
- Labour dispute (29 times)
- Natural disaster (four times)
Some notable examples of martial law being declared in the US include:
- In 1863, President Lincoln imposed Congressionally authorised martial law on Kentucky, Maryland, and Missouri during the Civil War.
- In 1871, Chicago Mayor Roswell B. Mason declared martial law after the Great Chicago Fire.
- In 1906, federal troops were placed under martial law following the San Francisco earthquake.
- In 1919, local leaders declared martial law in Omaha, Nebraska, during the Omaha race riot.
- In 1920, martial law was declared in West Virginia during the West Virginia Coal Wars.
- In 1941, Hawaii was placed under martial law following the Japanese attack on Pearl Harbor.
- In 1954, Alabama Governor Gordon Persons placed Russell County under martial law due to the influence of organised crime gangs.
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The Constitution and martial law
The US Constitution divides war powers between Congress and the President, with the President serving as the Commander-in-Chief of the military and the militia of the states when called into service. However, the Constitution does not give the President "conclusive and preclusive" authority over the domestic use of the military. Instead, it vests most of the relevant authority in the legislative branch, specifically Congress. This means that a unilateral declaration of martial law by the President would be unconstitutional and could be challenged in court.
On the other hand, state officials, including governors, have the power to declare martial law within their respective states, and such declarations are valid if authorized by the constitution or laws of the state. These declarations, however, must abide by the US Constitution and are subject to review by federal courts. For example, individuals detained under martial law can petition for a writ of habeas corpus, a right protected by the Constitution, to challenge their detention and the constitutionality of the declaration.
The concept of martial law is closely tied to the right of habeas corpus, which guarantees the right to a hearing and trial for lawful imprisonment and the supervision of law enforcement by the judiciary. Article 1, Section 9 of the US Constitution addresses this right, stating that it can only be suspended in cases of rebellion or invasion where public safety is at risk.
In US history, martial law has been declared more than 60 times, mostly by state and local officials, and often in response to civil unrest, riots, or natural disasters. Notable examples include West Virginia during the Coal Wars (1920-1921), Hawaii after the Japanese attack on Pearl Harbor (1941-1944), and Alabama's Russell County due to organized crime gangs (1954).
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Martial law and the suspension of habeas corpus
The concept of martial law in the United States is closely tied to the right of habeas corpus, which is the right to a hearing and trial on lawful imprisonment. The suspension of habeas corpus allows the government to detain and hold individuals without charge, but it does not imply any unusual role for the armed forces. While a declaration of martial law may be accompanied by a suspension of habeas corpus, they are distinct concepts.
The US Constitution specifically protects the right of habeas corpus in Article I, Section 9: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The Constitution allows Congress to suspend habeas corpus, but every other right it guarantees is intentionally left "forever inviolable." The suspension of habeas corpus is related to the imposition of martial law, and there have been several instances of this in US history.
For example, during the West Virginia Coal Wars (1920-1921), martial law was declared in the state of West Virginia to deal with striking miners. The army officer in charge acted under the Suspension Clause of Article I of the US Constitution, jailing union miners without trial. In 1863, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri, suspending habeas corpus and civil rights throughout the US. Lincoln imposed the suspension on "prisoners of war, spies, or aiders and abettors of the enemy," as well as draft dodgers.
In nearly every state, the governor has the power to impose martial law within the state's borders. However, state officials' actions under a declaration of martial law must abide by the US Constitution and are subject to review in federal court. The Supreme Court has established that declarations of martial law are subject to judicial review, and individuals detained by the military may ask a federal court to order their release by petitioning for a writ of habeas corpus.
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Martial law and the military
The concept of martial law is closely tied to the right of habeas corpus, which is the right to a hearing and trial for lawful imprisonment. In the United States, the imposition of martial law is related to the suspension of habeas corpus. While the US Constitution does not define martial law, its use throughout history has defined its application and limits. Generally, it refers to when the military temporarily assumes authority in place of civilian authority. This occurs when the army takes over a civilian area and imposes its own rules.
In the US, the power to impose martial law is held by the US President and Congress, as well as state governors and local leaders. However, the president's authority in this area is limited and subject to congressional approval. The Posse Comitatus Act prohibits federal military forces from engaging in civilian law enforcement without express congressional authorization. The Supreme Court has affirmed the power of individual states to declare martial law, provided it is authorized by the state's constitution or laws. The scope and limits of martial law remain ambiguous due to sparse and confusing legal precedents.
Historically, martial law has been declared in various circumstances in the US, including during wars, invasions, and natural disasters. For example, martial law was imposed in New Orleans during the War of 1812, in Hawaii during World War II after the Pearl Harbor attack, and in San Francisco following the 1906 earthquake. It has also been used to protect against mob violence and rioting, such as during the Utah War and the 1963 Cambridge riot.
The use of martial law has been controversial, with critics arguing that it undermines civilian authority and violates constitutional rights. For instance, the imposition of martial law in Hawaii during World War II led to the arrest of civilians by military police, which was later deemed unconstitutional by the Supreme Court.
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Frequently asked questions
Martial law is when the military temporarily substitutes its authority for civilian authority. It occurs when the army takes over a civilian area and imposes its own rules.
In the United States, the power to impose martial law rests with the US President and the US Congress, as well as state governors. However, the president's authority in this area is limited and subject to congressional approval. State declarations of martial law are also subject to review in federal court.
Martial law has been declared over 60 times in US history, mostly by state and local officials. Notable instances include New Orleans during the War of 1812, West Virginia during the Coal Wars, Hawaii during World War II, and Russell County, Alabama, due to gang violence.
When martial law is in effect, the military assumes law enforcement duties and imposes restrictions on civilian freedoms. Individuals can petition for a writ of habeas corpus if they are detained by the military.
