Cecily Zamora
Martial law is a legal term for when military authorities take control of civil governance and law enforcement. It is often declared in times of war, rebellion, or natural disaster, and gives the military commander of an area or country unlimited authority to make and enforce laws. In the United States, martial law has been imposed at least 68 times, mostly in limited, local areas. While the US Constitution does not define or specify who can declare martial law, the modern interpretation allows the president and state officials to declare degrees of martial law in certain situations. However, the president's authority to do so is disputed, and Congress may be the only governmental branch with the power to legally declare it. In other countries, martial law has also been implemented, sometimes for extended periods, as in the case of Brunei since 1962. So, can martial law be reversed?
| Characteristics | Values |
|---|---|
| Who can declare martial law? | In the US, the President and Congress can impose martial law. However, the US Constitution does not explicitly define or mention martial law. |
| In nearly every state, the governor has the power to impose martial law within the borders of the state. | |
| In other countries, martial law has been imposed by military leaders, parliament, or the head of state. | |
| When is martial law declared? | Martial law is typically declared in times of war, rebellion, natural disaster, domestic war, insurrection, riots, civil unrest, or labor disputes. |
| It is intended for times of extreme emergencies when civilian government and law enforcement have ceased to function or become ineffective. | |
| Martial law may also be declared when a high number of citizens are in immediate, mortal danger. | |
| What happens during martial law? | Military leaders assume control of civil governance and law enforcement, suspending existing laws and civil authority. |
| They may create and enforce their own laws, detain people, and take over local governments. | |
| Civil liberties and constitutional rights may be suspended or restricted, including curfews and limits on public gatherings. | |
| Can martial law be reversed? | Martial law is typically a temporary measure, and there are limits to its use. |
| In the US, the Posse Comitatus Act prevents the US military from participating in civilian law enforcement activities without congressional approval. | |
| The Insurrection Act allows the president to deploy the military to address rebellions, domestic violence, and civil disturbances, but it does not grant the authority to declare martial law. | |
| Congress may be the only governmental branch that can legally declare martial law, and the president's powers are subject to congressional authorization. |
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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 makes no specific provision for the imposition of martial law, nearly every state has a constitutional provision authorizing the government to impose martial law. Throughout American history, the federal and state governments have declared martial law over 60 times.
The Constitution of the United States does not define martial law and is silent as to who can impose it. However, the modern interpretation allows the president and state officials to declare "degrees of martial law in specific circumstances." Some scholars believe the president has the executive power to declare martial law. Others believe the president needs congressional authorization to impose martial law in a civilian area. Therefore, Congress may be the only governmental branch that can legally declare martial law, and the president can only act according to its action.
The Supreme Court ultimately approved the state's declaration of martial law in Luther v. Borden (1849). In that case, Chief Justice Roger Taney wrote that states had an inherent right to declare martial law to defend themselves and promote public safety. The Court's ruling endorsed the constitutionality of martial law and "finished what Congress had started with the refund bill." However, the decision did not address whether the federal government could impose martial law.
In 1866, the Supreme Court decided Ex parte Milligan, holding that only Congress could substitute military tribunals for civil courts. Because civilian courts were operational in Indiana at the time of Milligan's tribunal, he had a right to be tried in a civilian court rather than a military tribunal. The Court also held that Congress can only substitute military tribunals for civil courts during wartime.
Outside the United States, martial law has been declared in several countries, including China, Pakistan, Thailand, Egypt, Poland, Bangladesh, the Philippines, Canada, and India. In these countries, the power to declare martial law has been exercised by various authorities, including presidents, military commanders, governors, and legislative assemblies.
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Martial law in the US
Martial law in the United States refers to times when a region, state, city, or the entire nation was placed under the control of a military body. While the US President and Congress have the power to impose martial law, the president's authority to do so independently is disputed. In nearly every state, the governor has the power to impose martial law within their borders.
Martial law has been imposed at least 68 times in limited, usually local areas of the United States. It has been declared twice for war or invasion, seven times for domestic war or insurrection, eleven times for riot or civil unrest, 29 times for labour dispute, four times for natural disaster, and fifteen times for other reasons.
The concept of martial law in the US is closely tied to the right of habeas corpus, which is the right to a hearing and trial on lawful imprisonment, or the supervision of law enforcement by the judiciary. 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.
The suspension of habeas corpus is only one aspect of martial law, which involves the temporary substitution of military authority for civilian rule. When martial law is in effect, the military commander of an area has virtually unlimited authority to make and enforce laws, and all existing laws and civil authority are suspended.
In the US, martial law has been used in a limited number of circumstances, such as New Orleans during the Battle of New Orleans, after major disasters, such as the Great Chicago Fire of 1871, and during riots, such as the Omaha Race Riot of 1919.
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The Insurrection Act
In the United States, the Insurrection Act, originally enacted in 1792, grants the president the authority to deploy the U.S. military and use it against Americans on domestic soil under certain conditions. The law has been invoked many times throughout American history, including during labour conflicts in the late 19th and early 20th centuries, and to enforce federally mandated desegregation in the 20th century.
The Act has been modified twice: in 1861, a new section was added allowing the federal government to use the National Guard and armed forces against the will of the state government in the case of "rebellion against the authority of the government of the United States". In 1871, the Third Enforcement Act revised this section to protect Black Americans from attacks by the Ku Klux Klan.
The Act does not define key terms such as "insurrection", "rebellion", or "domestic violence", and so the question of when to deploy the military under the Act has been left to the president's discretion. In the 1827 case Martin v. Mott, the Supreme Court ruled that "the authority to decide whether [an exigency requiring the militia to be called out] has arisen belongs exclusively to the President". However, the Court has also suggested that it may step in if the president acts in bad faith or exceeds "a permitted range of honest judgment".
In 2020, Senator Richard Blumenthal introduced the CIVIL Act (Curtailing Insurrection and Violations of Individuals' Liberties Act) to restrict presidential authorities outlined in the Insurrection Act.
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Martial law and habeas corpus
The imposition of martial law is often a necessity-driven decision rather than a legally authorised one. While some countries have provisions that explicitly permit the use of martial law, many do not. In countries where there is no explicit constitutional right to declare martial law, the legal justification for its imposition is often based on the common law doctrine of necessity.
In the United States, martial law has been imposed at least 68 times, mostly in limited, local areas. While the US President does not have the authority to declare martial law, Congress might be able to authorise a presidential declaration. State officials 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.
The US 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. 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.
In US history, habeas corpus was suspended federally only once, in 1863 during the Civil War. During this time, President Lincoln suspended habeas corpus to arrest one-third of the Maryland state assembly. In 1878, Congress passed the Posse Comitatus Act, which forbids US military involvement in domestic law enforcement without congressional approval.
In the Indian constitution, martial law is mentioned in Article 34, which gives Parliament the power to indemnify persons in territories where martial law was in force.
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Martial law in history
Martial law has been imposed several times throughout history, in various countries, including the United States, Canada, China, India, Bangladesh, Brunei, Pakistan, the Philippines, Egypt, Syria, Azerbaijan, and Taiwan.
United States:
In the United States, martial law has been imposed at least 68 times, mostly in limited, local areas. Notable instances include:
- Virginia (1775): Lord Dunmore, the royal governor of Virginia, declared martial law, offering freedom to indentured servants and enslaved individuals who joined British forces against the rebelling colonists.
- Boston (1774): In response to the Boston Tea Party, the British Parliament passed the Intolerable Acts, placing Boston under martial law by closing its port and restricting town meetings.
- New Orleans (1814-1815): General Andrew Jackson imposed martial law during the Battle of New Orleans, defending the city against a British invasion. He censored the press, enforced curfews, and detained civilians without charge, continuing military rule for two months after the threat had ended.
- Nauvoo, Illinois (1844): Martial law was declared during the Illinois Mormon War.
- San Francisco (1906): After the 1906 earthquake.
- Hawaii (1941): Following the Japanese attack on Pearl Harbor.
- During the Civil Rights Movement: In response to riots and civil unrest.
Canada:
During the colonial era, martial law was applied in the territory of the Province of Quebec during the American Revolutionary War (1775-1776) and twice in the Province of Lower Canada during the 1837-1838 insurrections.
China:
Martial law has been imposed in China several times, including in Beijing in 1989 following the Tiananmen Square protests.
India:
During the British Raj, martial law was effectively declared in the Defense of India Acts of 1915 and 1939. It was also declared in most of Punjab in 1919 following the Amritsar Massacre.
Bangladesh:
Bangladesh has been under martial law several times, including in the late 1970s after Mujib's assassination and in the early 1980s under Hussain Muhammad Ershad.
Brunei:
Brunei has been under martial law since a rebellion in 1962, which was put down by British troops from Singapore.
Other instances of martial law include Syria (1967-2011), Egypt (1967-2021), Azerbaijan (2020), and Taiwan (1949-1987).
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Frequently asked questions
Martial law is a legal term for when military authorities take control of civil governance and law enforcement. During martial law, military leaders may suspend certain civil liberties, create and enforce their own laws, and detain people.
Martial law can be reversed. In the United States, martial law has been imposed at least 68 times, and it has been reversed on multiple occasions. The reversal of martial law typically involves transferring power back to civilian authorities and restoring suspended civil liberties.
The President and Congress have the power to impose martial law, within certain constraints. Additionally, in nearly every state, the governor has the authority to impose martial law within their respective state borders.
Yes, martial law has been imposed in the United States on several occasions. Notable examples include New Orleans during the Battle of New Orleans, after the Great Chicago Fire of 1871, and during the Civil Rights Movement.
Martial law is intended to be a temporary measure during extreme emergencies when civilian governance has ceased to function or become ineffective. It is subject to legal and constitutional constraints, such as the Posse Comitatus Act, which prohibits the military from participating in civilian law enforcement activities without congressional approval.
