Keith Mack
Martial law is a complex and controversial topic that has been interpreted and implemented differently throughout history. It involves the temporary substitution of civilian rule with military authority and is typically invoked during war, rebellion, or natural disaster. While some countries have provisions explicitly permitting martial law, others do not, and the legal justification for its imposition in such cases is often based on the common law doctrine of necessity. The authority of a military commander under martial law is nearly absolute, but it is not without limits. In the United States, for example, civilians cannot be tried by military tribunals as long as civilian courts are functional, and martial law is limited by several court decisions and acts of Congress. The question of whether martial law can be countermanded is a complex one, involving legal, political, and practical considerations.
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What You'll Learn
Martial law and the US Constitution
Martial law in the United States refers to times when a region, state, city, or the entire country is placed under the control of a military body. The US Constitution does not explicitly permit the declaration of martial law, but nearly every state has a constitutional provision authorizing the government to impose it. The US President and Congress have the power to impose martial law within certain constraints, and in nearly every state, the governor can impose it within state borders.
The imposition of martial law is often accompanied by the suspension of civil law, civil rights, and habeas corpus, and the application of military law or military justice to civilians. The US Constitution's Article 1, Section 9 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." The suspension of habeas corpus is closely tied to the imposition of martial law.
Martial law has been imposed at least 68 times in limited, usually local areas of the United States. It 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. Notable historical examples of martial law in the US include:
- New Orleans during the Battle of New Orleans
- Great Chicago Fire of 1871
- 1906 San Francisco earthquake
- Omaha race riot of 1919
- Lexington riots of 1920
- Illinois Mormon War in Nauvoo, Illinois
- Utah War
- West Virginia Coal Wars (1920-1921)
- Japanese attack on Pearl Harbor, Hawaii, during World War II
The Posse Comitatus Act, passed by Congress in 1878, forbids US military involvement in domestic law enforcement without congressional approval. This act and other federal laws limit the president's power to declare martial law unilaterally. Court decisions handed down between the American Civil War and World War II also limit the imposition of martial law in the United States.
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Martial law and the suspension of habeas corpus
Martial law is a temporary substitution of military authority for civilian rule and is usually invoked in times of war, rebellion, or natural disaster. It is often declared in cases of necessity rather than legal right, and while some countries have provisions explicitly permitting it, many do not. In the United States, the right to habeas corpus, which guarantees a hearing and trial on lawful imprisonment, is closely tied to the imposition of martial law.
The suspension of habeas corpus allows the government to detain and hold individuals without charge, and this right is protected by the US Constitution in Article I, Section 9, which 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." Despite this protection, habeas corpus has been suspended at the federal level in the US, most notably by President Lincoln during the Civil War in 1863. Lincoln's suspension of habeas corpus allowed him to try large numbers of civilian rioters in military courts and prevent the movement of Confederate troops on Washington.
The suspension of habeas corpus is not always accompanied by a declaration of martial law, and the two are distinct concepts. However, when martial law is declared, it often includes the suspension of habeas corpus and civil rights, and the application of military law or military justice to civilians. In the US, the imposition of martial law and the suspension of habeas corpus are subject to judicial review, and individuals detained by the military under martial law may petition for a writ of habeas corpus to be released.
Throughout history, martial law has been imposed at least 68 times in limited, usually local areas of the United States. It 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. Notable examples of the imposition of martial law in the US include the following:
- West Virginia Coal Wars (1920-1921): Martial law was declared in the state of West Virginia, and federal troops were dispatched to deal with striking miners.
- Great Chicago Fire (1871): Chicago Mayor Roswell B. Mason declared martial law and placed General Philip Sheridan in charge of the city.
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Martial law and the US President's powers
The US Constitution does not explicitly grant the President the power to declare martial law. However, some scholars argue that the President does have the power to declare martial law, especially in times of necessity. Martial law is a "dramatic departure from normal practice in the United States", as federal laws usually prevent the military from acting within the country.
In the United States, martial law has been used in limited circumstances, such as after major disasters, during riots, or in response to chaos associated with protests and rioting. The Posse Comitatus Act of 1878 forbids US military involvement in domestic law enforcement without congressional approval. This Act creates a general rule that it is unlawful for federal military forces to engage in civilian law enforcement activities without congressional authorization.
The US President does have the power, within certain constraints, to impose martial law, as they can be in charge of the militia. However, the President may need congressional authorization to impose martial law in a civilian area. Congress may be the only governmental branch that can legally declare martial law, and the President can only act according to its actions.
On September 15, 1863, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri. The authorizing act allowed the President to suspend habeas corpus and civil rights throughout the entire United States.
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Martial law and the US Supreme Court
While the US Constitution does not explicitly authorise martial law, the Supreme Court has recognised it as an implicit element of the constitutional framework. The Supreme Court has ruled that martial law is permissible but has set limits on its use. The justification for martial law lies in the fundamental concept of self-defence. When survival is threatened, people's first obligation is self-preservation, not the Constitution.
The Supreme Court has addressed the legality of martial law through several landmark cases, affirming that while martial law can be permissible under specific circumstances, it is subject to constitutional limitations. In Ex parte Merryman (1861), Chief Justice Roger Brooke Taney concluded that President Lincoln's suspension of the writ of habeas corpus was illegal. Lincoln never formally responded to the charge, but he continued to issue orders suspending the writ. In Ex parte Milligan (1866), the Supreme Court ruled that Lincoln's imposition of martial law (by way of suspension of habeas corpus) was unconstitutional in areas where the local courts were still in session.
In Duncan v. Kahanamoku (1946), the Court considered a challenge to an order by two civilians who had been convicted by military courts even though civilian courts were open. In his opinion for the Court, Justice Hugo L. Black wrote that “our system of government [is] clearly [...] the antithesis of total military rule.” Citing Milligan, Black concluded that the convictions should be overturned because the conditions specified in Milligan had not been satisfied.
Martial law has been imposed at least 68 times in limited, usually local areas of the United States. It has been declared nine times since World War II, and in five instances, it was designed to counter resistance to federal desegregation decrees in the South.
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Martial law and the US Congress
The US Constitution does not explicitly provide for the imposition of martial law. However, nearly every state has a constitutional provision authorizing the government to impose it. In US history, martial law has been imposed at least 68 times, mostly in limited, local areas. The President of the United States does not have the authority to unilaterally declare martial law. This is because the Constitution does not give the president "conclusive and preclusive" authority over the domestic use of the military, but instead vests power in the legislative branch. The US Congress has the power to impose martial law, and it has done so in the past, such as when it authorized President Lincoln to impose martial law on Kentucky, Maryland, and Missouri during the Civil War.
Congress has also passed laws that give the president the power to declare martial law under certain circumstances. For example, the John Warner National Defense Authorization Act for Fiscal Year 2007 gave the president the power to declare martial law and take command of the National Guard units of each state without the consent of state governors. However, this expansion of presidential power has been controversial, and some members of Congress have sought to reverse it. The Insurrection Act of 1807, amended in 2006, gives the president new powers to use the military for domestic disturbances, terrorism, and insurrection.
The exact scope and limits of martial law in the United States are unclear due to sparse and inconsistent Supreme Court precedent and confusing legal precedent. Congress and state legislatures have not enacted new laws to better define them, leaving the matter ambiguous. This ambiguity has raised concerns about the potential for the president to usurp the role of state governors in maintaining public order.
In conclusion, while the US Congress has the power to impose martial law and has done so in the past, the exact scope and limits of this power are unclear due to a lack of clear legal definitions. The president's authority to declare martial law is also disputed, with some arguing that Congress must authorize such a declaration.
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Frequently asked questions
Martial law involves the temporary substitution of military authority for civilian rule. It is usually invoked in times of war, rebellion, or natural disaster. When martial law is in effect, the military commander of an area or country has unlimited authority to make and enforce laws.
In the United States, martial law may be declared by proclamation of the President or a State governor. However, there is no explicit constitutional right for the President to declare martial law. The Supreme Court has never explicitly stated that the federal government has the power to declare martial law.
Martial law is limited by several court decisions handed down between the American Civil War and World War II. The Posse Comitatus Act, enacted in 1878, prevents the US military from participating in civilian law enforcement activities without congressional approval. The Insurrection Act of 1807 allows the President to deploy military forces to put down rebellions and help local law enforcement.
Yes, martial law declarations are subject to judicial review. Individuals detained by the military under martial law can ask a federal court to order their release by petitioning for a writ of habeas corpus. The court can then decide whether the declaration of martial law was constitutional.
Martial law has been declared numerous times throughout history, including by General Andrew Jackson in New Orleans in 1814 and by Governor Ford in Nauvoo in 1845. More recently, martial law was declared by the Armenian prime minister during the 2020 Nagorno-Karabakh war and by the Azerbaijani president during an anti-government uprising in 2011.
