Anaya Nolan
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 imposition of martial law has been used in a limited number of circumstances, such as in the case of war, invasion, insurrection, civil unrest, or natural disasters. When martial law is in effect, the military commander of an area or country has unlimited authority to make and enforce laws, and it suspends all existing laws, civil authority, and the ordinary administration of justice. However, the federal government is bound by the Constitution at all times, even under martial law, and cannot suspend or violate constitutional rights. So, can the Bill of Rights be suspended during martial law?
| Characteristics | Values |
|---|---|
| Who can declare martial law? | The US President, US Congress, and State Governors can declare martial law. |
| Is the Bill of Rights suspended during martial law? | No, the federal government is bound by the Constitution at all times, even under martial law. |
| What happens during martial law? | 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. |
| What is the right of habeas corpus? | The right to a hearing and trial on lawful imprisonment, or more broadly, the supervision of law enforcement by the judiciary. |
| Can the right of habeas corpus be suspended during martial law? | Yes, the right of habeas corpus can be suspended during martial law. |
| Can the military be used as a domestic police force? | Using the military to enforce the law goes against American tradition. The Posse Comitatus Act makes it illegal for federal military forces to participate in civilian law enforcement activities without express authorization from Congress. |
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What You'll Learn
The US President's power to suspend habeas corpus
The US Constitution reserves the power to suspend habeas corpus for Congress. However, this power has been exercised by US presidents on several occasions, both before and after Congress's explicit authorisation to do so.
In April 1861, at the outbreak of the American Civil War, President Abraham Lincoln unilaterally authorised his military commanders to suspend the writ of habeas corpus between Washington, D.C., and Philadelphia (and later up through New York City). Numerous individuals were arrested, including John Merryman and several Baltimore police commissioners. When a judge issued a writ of habeas corpus, the commander of Fort McHenry, Major W. Swann, refused to obey. Merryman's lawyers appealed, and in June 1861, US Supreme Court Chief Justice Roger Taney, writing as the United States Circuit Court for Maryland, ruled in Ex parte Merryman that Lincoln's suspension was invalid.
In July 1861, Congress failed to support Lincoln's suspension of habeas corpus. Shortly thereafter, Lincoln imprisoned pro-Confederate members of the Maryland General Assembly without charges or hearings in further defiance of the Chief Justice's ruling.
In December 1862, Representative Thaddeus Stevens introduced a bill "to indemnify the President and other persons for suspending the writ of habeas corpus". The bill was amended by the Senate, and the compromise reported out of the conference committee altered it to qualify the indemnity and to suspend habeas corpus on Congress's own authority. Lincoln signed the Habeas Corpus Suspension Act into law on March 3, 1863, and suspended habeas corpus under the authority it granted him six months later.
In Ex parte Milligan (1866), the US Supreme Court decided that Congress's 1863 suspension of the writ did not empower the President to try to convict citizens before military tribunals where the civil courts were open and operational.
In 1871, following the Great Chicago Fire, Chicago mayor Roswell B. Mason declared a state of martial law and placed General Philip Sheridan in charge of the city.
In 1906, martial law was declared following the San Francisco earthquake.
In 1919, local leaders declared martial law in Omaha, Nebraska, during the Omaha race riot to protect themselves from mob violence.
In 1920, local leaders declared martial law in Lexington during the Lexington riots.
In 1961, Governor Patterson of Alabama declared martial law in response to civil rights activists challenging the already-illegal racial segregation in the South.
In 2006, the John Warner National Defense Authorization Act for Fiscal Year 2007 was passed by Congress and signed by President George W. Bush, becoming Public Law 109-364. The Act gave the president the power to declare martial law and to take command of the National Guard units of each state without the consent of state governors.
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State governor's power to impose martial law
The US Constitution does not define martial law, nor does it specify who can declare it. However, the US President and US Congress can impose martial law as they can be in charge of the militia. In nearly every state, the governor has the power to impose martial law within the borders of the state. State declarations of martial law are conclusive and not subject to judicial review.
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.
Martial law can be imposed by state governors when civilian authority over an area has stopped functioning, such as in the case of an insurrection or natural disaster. For example, in 1863, President Lincoln imposed Congressionally-authorized martial law on Kentucky, Maryland, and Missouri. In 1961, Governor Patterson of Alabama declared martial law in response to civil rights activists challenging the already-illegal racial segregation in the South. 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.
The ability to suspend habeas corpus, the right to a hearing and trial on lawful imprisonment, is related to the imposition of martial law. The suspension of habeas corpus was only used once in 1863 during the Civil War.
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Martial law and the US Constitution
The concept of 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. In the history of the United States, martial law has been imposed at least 68 times, mostly by state and local officials. Notably, the US President and Congress have the power to impose martial law, and nearly every state governor holds this power within their respective state borders.
The imposition of martial law is closely tied to the suspension of habeas corpus, which is the right to a hearing and trial on lawful imprisonment. The suspension of habeas corpus and civil rights was notably authorised by President Lincoln in 1863 during the Civil War, and again in 1861, in response to prisoners of war, spies, and draft dodgers. However, the Supreme Court ruled that the imposition of martial law by suspending habeas corpus was unconstitutional in areas where local courts were still operational.
The Supreme Court has never explicitly stated whether the federal government can declare martial law, and if the president can unilaterally make such a declaration. Nonetheless, the federal government is bound by the Constitution at all times, even under martial law. Therefore, the government cannot suspend or violate constitutional rights, and martial law declarations are subject to judicial review.
The Posse Comitatus Act prohibits federal military forces from engaging in civilian law enforcement activities without express authorisation from Congress. This restriction limits the president's ability to utilise the military domestically, and a unilateral presidential declaration of martial law would violate these rules.
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Judicial review of martial law
The concept of 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. Both the US President and the US Congress have the power to impose martial law, and in nearly every state, the governor can impose it within the borders of the state.
The law surrounding the concept is complicated and unsettled, with no federal statute defining what the term means. This has resulted in the exact scope and limits of martial law being dangerously unclear.
In the US, martial law has been declared more than 60 times, mostly by state and local officials. Reasons for its declaration include war or invasion, domestic war or insurrection, civil unrest, labour dispute, and natural disaster.
The Supreme Court has never clearly stated whether the federal government can declare martial law, and if the president could do so unilaterally or would require congressional authorization. However, the Supreme Court's 1952 ruling in Youngstown Sheet & Tube Company v. Sawyer provides a framework for analyzing exercises of executive power. According to Youngstown, when Congress has addressed an issue with a statute, the president cannot act against Congress's will unless the Constitution gives the president "conclusive and preclusive" power over that issue.
In the 1849 case of Luther v. Borden, the Court held that state declarations of martial law were conclusive and therefore not subject to judicial review. In this case, the Court found that the Rhode Island legislature had been within its rights to resort to the rights and usages of war in combating insurrection in the state.
In Ex parte Milligan (1866), the Supreme Court ruled that President Lincoln's imposition of martial law by suspending habeas corpus was unconstitutional in areas where local courts were still in session.
In the 2017 case of Proclamation No. 216, the Supreme Court declared the proclamation constitutional, reflecting a strong presidency. The ruling stated that the President only needs to produce evidence that rebellion probably exists for martial law to be considered valid. The ruling ceded to the President the right to determine the territorial scope of martial law.
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Historical examples of martial law in the US
While the United States does not have an explicit constitutional right to declare martial law, it has been imposed at least 68 times in limited, usually local areas. The US President and Congress have the power to impose martial law on a national level, and state governors can impose it within their state borders.
New Orleans, 1814
During the Battle of New Orleans, martial law was declared.
Great Chicago Fire, 1871
Chicago mayor Roswell B. Mason declared a state of martial law after the Great Chicago Fire, placing General Philip Sheridan in charge of the city.
San Francisco Earthquake, 1906
After the 1906 earthquake, federal troops were pressed into martial law service in San Francisco. They were posted throughout the city, and all dynamite was confiscated to destroy buildings in the path of fires to prevent the fires from spreading.
Colorado Coalfield War, 1913-1914
The Colorado National Guard was called in to quell the strikers, and martial law was eventually proclaimed by the governor, resulting in the Ludlow Massacre.
Omaha Race Riot, 1919
Local leaders declared martial law to protect themselves from mob violence during the Omaha race riot.
Lexington Riots, 1920
Martial law was declared during the Lexington riots of 1920.
West Coast Waterfront Strike, 1934
Martial law was imposed in response to the chaos associated with the 1934 West Coast waterfront strike.
Hawaii, 1941
Martial law was instituted in Hawaii following the Japanese attack on Pearl Harbor. The Supreme Court later evaluated its legality in the case of Duncan v. Kahanamoku, determining that the US was responsible for the safety of Hawaiian residents.
Alabama, 1961
Governor Patterson of Alabama declared martial law in response to the "Freedom Riders," peaceful civil rights activists challenging racial segregation in the South.
Cambridge Riot, 1963
During the Civil Rights Movement, martial law was imposed in response to the Cambridge riot.
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Frequently asked questions
No, the federal government is bound by the Constitution at all times, even under martial law.
Martial law is a state of emergency where the military takes the place of the civilian government and exercises jurisdiction over civilians in a particular area.
In the United States, martial law may be declared by proclamation of the President or a State governor. However, such a formal proclamation is not necessary. The Supreme Court has held that individual states have the power to declare martial law, and such a declaration is valid if it is authorized by the constitution or laws of the state.
