Gavin Howe
Martial law is a complex and ambiguous concept that has been invoked more than 60 times in US history, mostly by state and local officials. It involves the military assuming temporary control over various civilian authorities, often in response to a crisis or emergency. While the US Constitution does not explicitly define or authorize the declaration of martial law, it is generally accepted that individual states have the power to declare it, provided it is authorized by their own constitution or laws. The federal government is also bound by the Constitution, even under martial law, and declarations are subject to judicial review. The Supreme Court has never explicitly stated whether the federal government or the President can declare martial law, and there is ambiguity around the exact scope and limits of this power.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | The Supreme Court has held that individual states have the power to declare martial law. Several presidents and state governors have imposed or approved declarations of martial law throughout American history. However, the Supreme Court has never explicitly held that the president can declare martial law. |
| What is martial law? | Martial law occurs when the military assumes temporary control over various civilian authorities. It is the substitution of a civil government by military authorities with unlimited powers to suspend the ordinary legal protections of civilian rights. |
| When is martial law declared? | Martial law is declared in an emergency, in response to a crisis, or to control occupied territory. It is usually declared when civilian authority over an area has stopped functioning, like in the case of an insurrection or natural disaster. |
| What happens when martial law is declared? | Civil liberties such as the right to free movement, free speech, protection from unreasonable searches, and habeas corpus laws may be suspended. The justice system that typically handles issues of criminal and civil law is replaced with a military justice system, such as a military tribunal. |
| Can martial law be challenged? | Yes, martial law declarations are subject to judicial review. Individuals can challenge a declaration of martial law by seeking injunctive relief in federal court and petitioning for a writ of habeas corpus if they are detained. |
What You'll Learn
The US President and Congress can impose martial law
The US Constitution does not define martial law and does not specify who can impose it. However, the US President and Congress can impose martial law within certain constraints. This is because both can be in charge of the militia. In fact, throughout American history, the federal and state governments have declared martial law over 60 times, mostly by state and local officials.
The Supreme Court has never explicitly ruled that the president or federal government can declare martial law. However, the Court's 1952 ruling in Youngstown Sheet & Tube Company v. Sawyer provides a framework for evaluating executive power. According to this ruling, when Congress has passed a statute on an issue, the president cannot act against Congress's will unless the Constitution grants the president "conclusive and preclusive" power in that area.
Congress has enacted legislation regulating the domestic deployment of the military, but this legislation does not authorise the president to impose martial law. Some scholars argue that the president has the executive power to declare martial law, while others believe congressional authorisation is required. Two federal laws impact the president's ability to declare martial law: the Posse Comitatus Act, which prevents the military from participating in civilian law enforcement, and the Calling Forth Clause, which allows for the use of military forces to execute the law.
While the president's ability to declare martial law is debated, state governors have the power to impose martial law within their state borders in nearly every state. State constitutions allow the governor or legislature to impose martial law, and the Supreme Court has held that individual states have this power as long as it is authorised by the state's constitution or laws.
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State governors can impose martial law
The US Constitution does not define martial law, nor does it specify who can declare it. The Supreme Court has never explicitly stated whether the federal government has the power to declare martial law. However, the US Constitution does give Congress the authority to regulate the domestic deployment of the military.
Throughout history, state governors have imposed or approved declarations of martial law on numerous occasions. For example, in 1954, Alabama Governor Gordon Persons placed Russell County under martial law due to the pervasive influence of organized crime gangs. In 1963, Maryland Governor J. Millard Tawes imposed martial law on the city of Cambridge for over a year in response to clashes between racial justice advocates and segregationists. In 1871, Chicago Mayor Roswell B. Mason declared a state of martial law and placed General Philip Sheridan in charge of the city in response to the Great Chicago Fire.
While the power of state governors to impose martial law is established, it is not without limits. For example, in the case of Moyer v. Colorado, Governor James Peabody declared martial law during a labor dispute between mine workers and their employers. The state militia and National Guard began arresting striking workers, and Charles Moyer was arrested for desecrating an American flag. Moyer petitioned for a writ of habeas corpus, and although the court granted his writ, the Colorado State Attorney General refused to honor it. Moyer eventually secured his release and continued to press his case to the US Supreme Court. Justice Oliver Wendell Holmes wrote that the Supreme Court would not determine whether a state of insurrection existed to justify the governor's declaration of martial law, but that the governor's actions were not justified by the exigency of the situation.
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Martial law suspends civil liberties
In the United States, martial law has been declared more than 60 times, mostly by state and local officials. The Supreme Court has held that individual states have the power to declare martial law, and such a declaration is valid if it is authorised by the constitution or laws of the state. The US President and Congress also have the power to impose martial law, as both can be in charge of the militia. However, the Supreme Court has never clearly stated whether the federal government has the power to declare martial law, and if so, whether congressional authorization would be required.
Martial law refers to instances when a nation's armed forces assume the governance of an area. Officials typically impose martial law when civilian authority over an area has ceased to function, such as during an insurrection or natural disaster. While the exact scope and limits of martial law are unclear, it has been used to impose strict curfews and travel restrictions, suspend habeas corpus, and limit civil liberties such as freedom of expression and freedom from unreasonable searches and seizures.
The right of habeas corpus, or the right to a hearing and trial on lawful imprisonment, is closely tied to the concept of martial law in the United States. While the Constitution allows Congress to suspend habeas corpus in certain circumstances, it does not provide a procedure for suspending other constitutional rights, such as those protected by the First, Fourth, Fifth, and Sixth Amendments. Even under martial law, the government cannot suspend or violate constitutional rights, and declarations of martial law are subject to judicial review. Individuals can challenge a declaration of martial law and petition for a writ of habeas corpus if they believe their rights have been violated.
The suspension of civil liberties during martial law can vary depending on the specific circumstances and the entity declaring it. For example, during the Illinois Mormon War, local leaders declared martial law to protect themselves from mob violence, while in Egypt, martial law resulted in the dissolution of parliament and the suspension of the constitution. In the United States, the use of martial law has been limited by court decisions handed down between the American Civil War and World War II, as well as by the Posse Comitatus Act, which forbids US military involvement in domestic law enforcement without congressional approval.
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Martial law declarations are subject to judicial review
The concept of martial law is closely tied to the right of habeas corpus, which is the right to a hearing and trial on lawful imprisonment. The US Constitution states that the right to habeas corpus can only be suspended in cases of rebellion or invasion when public safety is at risk. In the past, the suspension of habeas corpus has been associated with the imposition of martial law. For example, in 1843, Joseph Smith, the founder of Mormonism, was discharged on a writ of habeas corpus, despite opposition from people in the neighboring town of Carthage, Illinois, who felt that Smith was abusing his position to avoid arrest. In another instance, during the Civil War, President Lincoln suspended the writ of habeas corpus, leading to the arrest of one-third of the Maryland state assembly. The Supreme Court later ruled that Lincoln's actions were void.
The ambiguity surrounding the term "martial law" and the lack of a clear definition in federal statutes or the US Constitution have led to concerns about the scope and limits of this power. The Supreme Court's precedent on martial law is limited, inconsistent, and vague, making it challenging to determine the exact authority of the president, Congress, or state officials in declaring martial law.
Despite the lack of clarity, martial law 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 state's borders. Declarations of martial law have occurred in response to emergencies, crises, or civil unrest, such as natural disasters, riots, or insurrections. For example, in 1954, Alabama Governor Gordon Persons placed Russell County under martial law due to the pervasive influence of organized crime gangs.
The judicial system plays a crucial role in reviewing and challenging martial law declarations. Individuals detained by the military under martial law can petition for a writ of habeas corpus, challenging their detention and prompting a court to review the constitutionality of the declaration. This process ensures that even during states of emergency, the government cannot suspend or violate constitutional rights, and individuals' freedoms are protected.
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Martial law has no established definition
Martial law has been declared over 60 times in US history, mostly by state and local officials. However, the term has no established definition. The Supreme Court's precedent on martial law is limited, old, vague, and inconsistent. No federal statute defines what the term means, and the Constitution does not specify who can declare it. This has resulted in a dangerously unclear scope and limit of martial law.
The concept of martial law is closely tied to the right of habeas corpus, which is the right to a hearing and trial on lawful imprisonment. The ability to suspend habeas corpus is related to the imposition of martial law. Article 1, Section 9 of the US Constitution states:
> 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.
Martial law usually refers to a power that, in an emergency, allows the military to take the place of the civilian government and exercise jurisdiction over civilians in a particular area. However, the term has been used to describe a wide variety of actions, practices, or roles for the military. For example, the use of the military within the borders of the US, such as during the Whiskey Rebellion, does not amount to a declaration of martial law.
The Supreme Court has held that individual states have the power to declare martial law if it is authorized by the constitution or laws of the state. However, state officials are bound by the US Constitution and valid federal laws. The Supreme Court has never clearly stated whether the federal government has the power to declare martial law, and if so, whether congressional authorization is required. While several presidents throughout history have declared martial law, it is unclear whether the president can legally do so.
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Frequently asked questions
The US Constitution does not define martial law, nor does it specify who can declare it. While the Supreme Court has held that individual states have the power to declare martial law, it has never explicitly held that the president can. Therefore, it is unclear whether the president can legally declare martial law. However, several presidents throughout history have done so.
Martial law occurs when the military assumes temporary control over various civilian authorities. It is typically declared in an emergency, in response to a crisis, or to control occupied territory. Martial law is a last resort reserved for situations where law and order are rapidly deteriorating.
When martial law is declared, civil liberties such as the right to free movement, free speech, and protection from unreasonable searches may be suspended. The justice system that typically handles issues of criminal and civil law is replaced with a military justice system, and civilians may be arrested for violating curfews or minor offenses.
