Keith Mack
Martial law is a dramatic departure from normal practice in which military authority is temporarily substituted for civilian rule. It is usually invoked in times of war, rebellion, or natural disaster, and has been imposed at least 68 times in limited, local areas of the United States. The law surrounding martial law is complicated and unsettled, with no established definition. The US Constitution does not define it or specify who can declare it, and while it has been declared by several presidents, the Supreme Court has never explicitly held that the federal government can impose it. Instead, the Court has suggested that states can declare martial law, and that Congress might be able to authorize a presidential declaration.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | The US Constitution does not specify who can declare martial law. However, several presidents and state governors have imposed or approved declarations of martial law throughout American history. Congress might be able to authorize a presidential declaration of martial law. |
| Scope | Martial law has been declared more than 60 times in US history, mostly by state and local officials. |
| Definition | Martial law involves the temporary substitution of military authority for civilian rule. |
| Reasons | War or invasion, domestic war or insurrection, riot or civil unrest, labor dispute, natural disaster, and coup d'état. |
| Powers | The military commander of an area or country has unlimited authority to make and enforce laws. Martial law suspends all existing laws, civil authority, and the ordinary administration of justice. |
| Limitations | The Posse Comitatus Act makes it illegal for federal military forces to participate in civilian law enforcement activities without congressional approval. |
| Judicial Review | Declarations of martial law are subject to judicial review. Individuals can challenge a declaration by seeking injunctive relief in federal court and petitioning for the writ of habeas corpus. |
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What You'll Learn
Who can declare martial law?
In the United States, martial law may be declared by proclamation of the President or a State governor, but such a formal proclamation is not necessary. Although the U.S. Constitution does not define martial law and does not explicitly grant the president the power to declare it, nearly every state has a constitutional provision authorizing the government to impose martial law. According to modern interpretation, the president and state officials can declare "degrees of martial law in specific circumstances." Some scholars believe the president has the executive power to declare martial law, while others argue that congressional authorization is required. Thus, Congress may be the only governmental branch that can legally declare martial law.
Historically, martial law has been imposed at least 68 times in limited, usually local areas of the United States. Notable instances include Lord Dunmore, the royal governor of Virginia, declaring martial law in 1775, and Governor William Tryon retaining his title while military commanders took control of New York City's administration in 1776. During the Whiskey Rebellion, President Lincoln suspended habeas corpus in 1861 to arrest members of the Maryland state assembly. In 1972, martial law was declared in the Philippines by Ferdinand Marcos, who claimed it was necessary to address violent student demonstrations and threats from the Communist Party of the Philippines and the Moro National Liberation Front.
In other countries, the power to declare martial law varies. For example, in India, the sole mention of martial law in the constitution is in Article 34, which gives Parliament the power to indemnify persons in respect of acts done in territories where martial law was in force. In Bangladesh, martial law was declared multiple times in the 1970s and 1980s by Chief Martial Law administrators like Ziaur Rahman and Hussain Muhammad Ershad. In China, the Beiyang government's draft constitution in 1908 included provisions for martial law, and the Provisional Constitution of 1911 authorized the President to declare martial law in times of emergency.
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Martial law and the US Constitution
The US Constitution does not define martial law, nor does it specify who can impose it. However, the modern interpretation allows the president and state officials to declare "degrees of martial law in specific circumstances". The US Constitution and federal laws limit the use of martial law by the federal government and states. Martial law has been used in the US in a limited number of circumstances, such as during wars, invasions, civil unrest, riots, and natural disasters.
The US Constitution binds the federal government's actions when martial law is declared, preventing the infringement of citizens' constitutional and civil rights. Martial law has been declared nine times since World War II, and in five instances, it was used to counter resistance to federal desegregation decrees in the South.
The US Constitution does not give the president "conclusive and preclusive" authority over the domestic use of the military. Instead, it vests power in the legislative branch, and the president cannot act against Congress's wishes in this area. The Posse Comitatus Act, passed by Congress in 1878, forbids US military involvement in domestic law enforcement without congressional approval. Therefore, a unilateral declaration of martial law by the president would not survive a legal challenge.
The Supreme Court has ruled that the imposition of martial law by suspending habeas corpus is unconstitutional in areas where local courts are still in session. Martial law is considered a dramatic departure from normal practice in the United States and is generally only imposed temporarily in specific areas.
The use of martial law throughout history has defined its application and limitations. It refers to when the military temporarily substitutes its authority for civilian authority, and it is allowed when courts are closed, and criminal justice cannot be administered due to foreign invasion or civil war. The government's right, power, and duty to "maintain public order" and keep the peace justify the use of martial law during wartime.
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Martial law and habeas corpus
The US Constitution, in Article I, Section 9, specifically protects the right of habeas corpus:
> "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."
In times of rebellion or invasion, the US President is authorised to suspend the writ of habeas corpus if public safety requires it. This was the case in 1861 when President Abraham Lincoln suspended habeas corpus in Maryland to try large numbers of civilian rioters in military courts and prevent the movement of Confederate troops on Washington. In 1862, Lincoln subjected protestors to martial law and the suspension of habeas corpus. In 1863, Lincoln again suspended habeas corpus in Kentucky, declaring:
> "I, Abraham Lincoln, President of the United States, by virtue of the authority vested in me by the Constitution and laws, do hereby declare that in my judgment the public safety especially requires that the suspension of the privilege of the writ of habeas corpus...and that martial law be for the present established therein."
In the Milligan case, the Supreme Court pronounced Lincoln's suspension of habeas corpus in 1863 void, stating that the Constitution is:
> "a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances."
The Supreme Court has established that declarations of martial law are subject to judicial review. Individuals detained by the military under martial law may petition for a writ of habeas corpus and ask a federal court to order their release.
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Martial law in US history
Martial law in the United States refers to when a region, state, city, or the entire country is placed under the control of a military body. While there is no universal definition, it often refers to the use of the military for law enforcement, with the normal American legal system being replaced by a stricter set of laws and punishments controlled by the military or executive branch.
The United States Constitution does not define who can impose martial law. However, the president, Congress, or a local military commander may impose degrees of martial law under specific situations. The power to end martial law typically rests with those who imposed it, although Congress can complain, and the Supreme Court can rule on it. The Posse Comitatus Act, enacted by Congress in 1878, prevents the US military from participating in civilian law enforcement activities.
Martial law has been declared at least 68 times in US history, with the first use occurring in 1814, near the end of the War of 1812. General Andrew Jackson, who later became president, declared martial law in New Orleans to defend against a British invasion. In 1863, President Abraham Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri during the Civil War, which was later ruled unconstitutional by the Supreme Court.
In the 20th century, martial law was declared in response to disasters, riots, strikes, and wars. For example, in 1903, Colorado Governor James Peabody declared martial law in Cripple Creek and Telluride to break a peaceful strike by miners. In 1914, martial law was imposed during the Colorado Coalfield War, resulting in the Ludlow Massacre. In 1941, martial law was declared in Hawaii after the attack on Pearl Harbor, and during World War II, Franklin D. Roosevelt expanded it to include the incarceration of Japanese-Americans on the West Coast. In the 1960s, a period of civil unrest, martial law was imposed in San Francisco and Detroit, Michigan.
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Martial law in other countries
Martial law has been declared in numerous countries throughout history, and while it is supposed to be a temporary state, it has often been exploited by governments to suppress political opposition and retain power. Here are some examples of martial law being imposed in countries other than the United States:
Philippines:
Ferdinand Marcos imposed martial law in the Philippines in September 1972, claiming it was necessary to counter rising disorder caused by student demonstrations, the threat of communist insurgency, and the Muslim separatist movement. Under martial law, Marcos brutally suppressed any opposition, with tens of thousands of Filipinos from various walks of life being arbitrarily arrested, detained, tortured, or executed. A new constitution was ratified in 1973, with Marcos as both president and prime minister. Despite initial public support for martial law, disillusionment grew as economic woes and reports of corruption surfaced. Martial law was finally lifted in 1981, and Marcos was exiled after losing an election to the widow of one of his key opposition leaders.
Poland:
Martial law was introduced in the Polish People's Republic in December 1981 by General Wojciech Jaruzelski to prevent the extraparliamentary opposition from gaining power. Thousands of people associated with the Solidarity Movement were arrested and detained, and a nationwide travel ban, curfews, censorship, and food rationing were imposed. Approximately 91 deaths were attributed to the martial law, including 9 miners shot by police during a strike. While some view this period as a necessary evil to prevent a potential Soviet military intervention, others argue it violated the principles of democracy and justice.
Thailand:
Thailand experienced periods of martial law following coups in 2006 and 2014.
Egypt:
Egypt declared martial law in 2013. In 1996, Egypt also passed a press code that stipulated prison penalties for individuals who offended foreign heads of state.
Syria:
Syria had the longest-ranging period of active martial law, lasting from the 1963 coup d'état until 2011.
Russia and Ukraine:
The imposition of martial law by Russia in four regions of Ukraine annexed during the 2022 Russian invasion has raised questions about the interpretation of the 'rule of law' in an international law context. The International Court of Justice (ICJ) ruled that both nations should desist from using force, and Russia's imposition of martial law has been seen as a violation of international law and the right of self-determination of the Ukrainian people.
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Frequently asked questions
Martial law is when a nation's armed forces assume the governance of an area, usually in times of war, rebellion, or natural disaster.
The legalities of who can declare martial law vary between countries. In the US, the president does not have the explicit authority to declare martial law, but state officials do have the power to do so. However, their actions under the declaration must abide by the US Constitution and are subject to review in federal court.
When martial law is in effect, the military commander of an area or country has unlimited authority to make and enforce laws. All existing laws, civil authority, and the ordinary administration of justice are suspended.
Yes, martial law declarations are subject to judicial review. If individuals are detained by the military under martial law, they can ask a federal court to order their release by petitioning for a writ of habeas corpus.
