Cecily Zamora
Martial law involves the temporary substitution of military authority for civilian rule and is usually invoked in times of war, rebellion, or natural disaster. It can be declared by the US president, a state governor, or, in limited emergencies, by a local military commander. While the US Constitution does not specifically define or provide for the imposition of martial law, nearly every state has a constitutional provision authorizing the government to impose it. The Posse Comitatus Act prohibits federal forces from assisting in domestic law enforcement unless the president has directed operations under the Insurrection Act or related laws. The Insurrection Act leaves it almost entirely up to the president to decide when and where to use US armed forces at home against Americans.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | The President, a State governor, or Congress. |
| Who can deploy the military domestically? | The President, with congressional authorization. |
| What does martial law involve? | The temporary substitution of military authority for civilian rule. |
| When can martial law be declared? | In an emergency, or during a time of war, rebellion, or natural disaster. |
| What powers does the military have under martial law? | The power to make and enforce laws, including suspending existing laws, civil authority, and the ordinary administration of justice. |
| Are there any limits to the military's powers under martial law? | Yes, the military cannot suspend or violate constitutional rights. |
| Can civilians be tried by military tribunals under martial law? | No, as long as civilian courts are functional. |
| Can individuals detained by the military under martial law seek legal recourse? | Yes, they can petition for a writ of habeas corpus or seek injunctive relief in federal court. |
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What You'll Learn
The US President's power to declare martial law
The US Constitution does not explicitly grant the president the power to declare martial law. However, some scholars argue that the president has the executive power to declare martial law, while others believe that congressional authorization is required. The Posse Comitatus Act, enacted in 1878, prohibits the US military from engaging in civilian law enforcement activities, except when expressly authorized by Congress. This Act has been interpreted to prevent the president from unilaterally declaring martial law.
On the other hand, the Insurrection Act of 1807 allows the president to deploy military forces to address rebellions, domestic violence, and support local law enforcement. Additionally, the US president is the Commander-in-Chief of the armed forces, which grants them certain powers over the militia. In practice, several presidents throughout history have declared martial law, either independently or with congressional support.
The power to declare martial law is also held by state governors, who can impose it within their state's borders. Nearly all state constitutions allow the governor or legislature to impose martial law. Governors have historically declared martial law during emergencies, such as natural disasters, civil unrest, and strikes.
While the president has some degree of power to declare martial law, it is not an unlimited power. The Supreme Court has never explicitly ruled that the president can declare martial law, and any declaration of martial law by the president would likely face legal challenges. The president's power in this area is constrained by the Constitution, federal laws, and the separation of powers between the executive and legislative branches.
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State governor's power to declare martial law
In the United States, martial law is a somewhat vague legal term for when military authorities take control of civil governance and law enforcement. During martial law, the military commander of an area or country has unlimited authority to make and enforce laws, and executive or military leaders may suspend certain civil liberties. The term usually refers to a power that, in an emergency, allows the military to push aside civilian authorities and exercise jurisdiction over the population of a particular area.
Although the US Constitution and founding documents do not mention martial law, nor has Congress passed a law specifying when it can be declared, nearly every state has a constitutional provision authorizing the government to impose it. The power to declare martial law is held by state governors, granted by either the state constitution or the state legislature. The Supreme Court has never specifically ruled that the president or federal government can declare martial law, and the Constitution does not explicitly grant the president this power.
State governors have used their power to declare martial law in response to violent civil unrest, natural disasters, or other calamities. For example, in 1900, the governor of Nebraska City, Nebraska, declared martial law in response to the Akron Riot. In 1935, Governor Paul V. McNutt of Indiana declared martial law in Vigo County in response to the General Strike of 1935. In 1961, Governor Patterson of Alabama declared martial law in response to the "Freedom Riders," peaceful civil rights activists challenging racial segregation in the South.
It is important to note that the power of martial law, once considered nearly absolute, now has limitations. For example, civilians may not be tried by military tribunals as long as civilian courts are functional. The exact scope and limits of martial law remain unclear, and the Supreme Court precedent is too old, sparse, and inconsistent to provide certainty.
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Martial law and the suspension of constitutional rights
Martial law in the United States typically refers to a power that allows the military to supplant the civilian government and exert jurisdiction over civilians in a specific area during an emergency. However, the term "martial law" lacks a universally accepted definition, and its legal implications are complex and ambiguous.
Historically, the implementation of martial law has resulted in the suspension of constitutional rights, such as the right to assemble, own firearms, and be protected from unreasonable searches and seizures. The military officer in command during martial law has significant authority, including the ability to detain individuals without trial. For instance, during World War II, Hawaii was placed under martial law, leading to the forced removal and internment of Hawaiians of Japanese descent. In another instance, President Abraham Lincoln suspended habeas corpus during the Civil War, enabling the detention of civilians accused of being spies or saboteurs if they were critical of the Union.
The power dynamics between Congress, the President, and the Supreme Court in declaring martial law are intricate. While Congress has granted the President substantial authority to deploy troops domestically, it has also imposed explicit restrictions on the President's ability to unilaterally declare martial law. The Constitution does not bestow upon the President the exclusive power to deploy the military domestically. Instead, it vests Congress with the primary authority in this regard. The Supreme Court has not conclusively ruled on the federal government's constitutional authority to declare martial law, but it is generally accepted that any such declaration would need to abide by the Constitution and be subject to judicial review.
The United States has a long history of martial law declarations, with 68 instances recorded according to the Brennan Center for Justice. Notable examples include Boston in 1774, Virginia in 1775, and New York in 1776, when the British imposed martial law to suppress colonial rebellions. In more recent times, states like West Virginia, California, and Alabama have invoked martial law to manage striking miners, dock worker strikes, and the influence of organised crime gangs, respectively.
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Martial law in the US: historical examples
In the United States, martial law historically refers to an emergency power that allows the military to take the place of civilian government and enforce jurisdiction over civilians in a particular area. The term "martial law" has no established definition, and the law governing it is complicated and unsettled. The Supreme Court has never clearly stated whether the federal government has the power to declare martial law, and if so, whether it would require congressional authorization. However, the following historical examples illustrate instances where martial law was declared in the US:
Boston (1774)
In response to the Boston Tea Party, the British Parliament passed the Intolerable Acts, which included the Massachusetts Government Act. This act effectively placed Boston under martial law by closing its port and restricting town meetings. General Thomas Gage, appointed as the military governor, enforced these measures to suppress dissent.
Virginia (1775)
On November 7, 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. This tactic aimed to weaken the colonial rebellion and encourage enslaved people to support the British.
New Orleans, Louisiana (1814-1815)
During the Battle of New Orleans in the War of 1812, General Andrew Jackson imposed martial law on the city. He claimed that the military had the authority to do whatever was "necessary" to protect New Orleans from the impending British attack.
Kentucky, Maryland, and Missouri (1863)
On September 15, 1863, President Lincoln imposed Congressionally authorized martial law on these three states. The authorizing act allowed Lincoln to suspend habeas corpus and civil rights throughout the US, which he had already done under his authority in 1861. Lincoln's proclamation was later challenged in Ex parte Milligan (1866), and the Supreme Court ruled that the suspension of habeas corpus was unconstitutional in areas where local courts were still functioning.
Great Chicago Fire (1871)
Following the Great Chicago Fire of 1871, Chicago Mayor Roswell B. Mason declared martial law and placed General Philip Sheridan in charge of the city on October 9, 1871. Federal troops were deployed to maintain order and prevent the spread of fires.
San Francisco Earthquake (1906)
After the 1906 earthquake in San Francisco, federal troops were pressed into martial law service. They were posted throughout the city, and dynamite was used to demolish buildings in the path of fires to prevent their spread.
Colorado Coalfield War (1914)
The Colorado National Guard was initially called in to quell strikers during the Colorado Coalfield War, which had been ongoing since 1913. However, clashes escalated, and the governor proclaimed martial law, resulting in the Ludlow Massacre. President Wilson sent in federal troops to restore order and end the violence.
West Virginia Coal Wars (1920-1921)
During the West Virginia Coal Wars, martial law was declared in the state, and federal troops were dispatched to Mingo County to handle striking miners. The army officer in charge jailed union miners without any trials, leading to a "veritable military dictatorship," according to Governor Cornwell.
Hawaii (1941-1944)
After the Japanese attack on Pearl Harbor in 1941, Hawaii was placed under martial law until October 24, 1944. During this period, the military's conduct was later condemned by a federal judge, who stated that they had set up a military government that threw the Constitution "into the discard."
These examples demonstrate instances where martial law was invoked in the US, often during times of crisis, unrest, or natural disasters. However, it is important to note that the power to declare martial law and the specific authorities it confers remain complex and evolving legal questions in American jurisprudence.
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Martial law in other countries
Martial law has been declared or imposed in several countries other than the United States. Here are some examples:
Thailand
Martial law was imposed in Thailand in 2006 and 2014 following a coup d'état.
Egypt
Egypt experienced martial law in 2013 after a similar incident.
China
Martial law was declared in China during the Tiananmen Square protests of 1989.
Poland
In 1981, Poland experienced martial law as an attempt to suppress political opposition.
Philippines
From 1972 to 1981, the Philippines was under martial law during President Ferdinand Marcos' regime. The official reason for its imposition was to curb civil strife and the threat of a communist takeover. However, the policy eventually led to human rights abuses by the military and economic downturns, causing dissent among the people.
Lebanon
During the 2006 Lebanon War, Defence Minister Amir Peretz declared martial law in the north of the country. The Israel Defense Forces were given the authority to issue instructions to civilians, impose curfews, and close down offices, schools, and factories in cities considered under threat of attack.
Syria
Syria experienced the longest-ranging period of active martial law, which lasted from the 1963 Syrian coup d'état until 2011.
Germany and Japan
Following World War II, Germany and Japan experienced martial law during their reconstruction periods.
France
From 1871 to 1873, northern France was under German occupation and martial law following the Treaty of Frankfurt, which ended the Franco-Prussian War.
United Kingdom
The concept of martial law dates back to 1628 in England, when Sir Matthew Hale described it as "no Law, but something indulged rather than allowed as a Law."
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Frequently asked questions
Martial law allows the military to take the place of the civilian government and exercise jurisdiction over civilians in a particular area. The military commander of an area or country has unlimited authority to make and enforce laws. However, the military's actions are subject to judicial review and the government cannot suspend or violate constitutional rights even under martial law.
The president does not have the constitutional authority to declare martial law. Congress has placed restrictions on the president's ability to use the military domestically. However, the Insurrection Act allows the president to deploy the military to assist civilian authorities with law enforcement.
When martial law is declared, civilian authority is suspended, and the military assumes governance of the area. The military commander can impose their own rules and their authority is virtually unlimited. Martial law is usually invoked in times of war, rebellion, or natural disaster when civilian authority has ceased to function or is ineffective.
