Gavin Howe
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. While the US Constitution does not explicitly define or mention martial law, it has been imposed at least 68 times in limited, local areas of the country. On a national level, the US President and Congress can impose martial law, and in nearly every state, the governor has the power to impose martial law within state borders. The US President can deploy military forces domestically to suppress insurrections, rebellions, or domestic violence when necessary to enforce federal laws and maintain public order. There have been several instances of the use of the military within the US, such as during the Whiskey Rebellion and the Civil Rights Movement, but these acts do not constitute a declaration of martial law.
| Characteristics | Values |
|---|---|
| Who can declare martial law? | The US President, US Congress, and in nearly every state, the governor. |
| Instances of martial law in US history | At least 68 times, usually in limited, local areas. |
| Reasons for declaration of martial law | War or invasion, domestic war or insurrection, riot or civil unrest, labor dispute, natural disaster, and other reasons. |
| Federal laws impacting the declaration of martial law | The Posse Comitatus Act and the Insurrection Act. |
| Limits to martial law | Martial law is meant to be a last resort and cannot be declared when local courts are in session. Courts play a role in limiting the duration of martial law. |
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What You'll Learn
The US President and Congress can declare martial law
The US Constitution does not explicitly define or grant the president the power to declare martial law. However, it also does not forbid it. The Constitution also does not specify when martial law can be declared. Instead, its use throughout history has defined its application and limits.
There are two theories regarding the source of the power to declare martial law. The first theory states that martial law does not come from any direct authority but instead "arises from the nature of things, being the law of paramount necessity". In other words, it comes from the government's right, power, and/or duty to "maintain public order" and keep the peace. The second theory suggests that the Constitution's enumerated war powers of the legislative and executive branches give both Congress and the president the power to declare martial law. Articles I and II of the Constitution give each branch some control over America's military forces.
Throughout history, the federal and state governments have declared martial law over 60 times. While the president can call the military into action to help local governments after a natural disaster, its help is usually limited. However, some scholars believe the president has the executive power to declare martial law, while others believe the president needs congressional authorization to impose martial law in a civilian area.
Congress has the power to impeach a president for an abuse of power if they declare martial law without cause. Congress has also enacted laws that impact the president's ability to declare martial law, such as the Posse Comitatus Act, which prevents the US military from participating in civilian law enforcement activities without congressional approval, and the Insurrection Act, which allows the president to deploy military forces to suppress rebellions within the United States.
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State governors can declare martial law
In the past, state governors have declared martial law during times of labor unrest, natural disasters, and civil unrest. For example, in 1892, striking mineworkers in Coeur d'Alene, Idaho, blew up a mill and shot at strike-breaking workers. The governor declared martial law and requested federal troops to back guardsmen. Over 600 people were arrested, and two dozen ringleaders were tried in a military court. In another instance, following the 1906 San Francisco earthquake, federal troops were pressed into martial law service, and all dynamite was confiscated to destroy buildings in the path of fires to prevent them from spreading.
State governors have also declared martial law to protect themselves from mob violence and chaos associated with protests and rioting. For example, during the Illinois Mormon War, the governor of Utah declared martial law, and in 1934, local leaders declared martial law in response to the West Coast waterfront strike. In addition, state governors can call in the National Guard to help during emergencies, although the Guard does not create or enforce its own laws but assists the state in enforcing existing laws.
The ability to declare martial law is not without limitations. For example, civilians may not be tried by military tribunals as long as civilian courts are functional. Nonetheless, within the bounds of court decisions, a military commander's authority under martial law is virtually unlimited.
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Martial law has been declared 68 times in the US
In the United States, martial law refers to when a region, state, city, or the entire nation is placed under the temporary control of a military body, with civilian authority being replaced. This is considered a "dramatic departure from normal practice" in the country, as federal laws usually prevent the military from acting within the country.
Martial law has been declared at least 68 times in limited, usually local areas of the US. 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 labor dispute, four times for natural disaster, and fifteen times for other reasons.
The first use of martial law in the US occurred in 1814, near the end of the War of 1812. General Andrew Jackson, who later became the seventh president, declared martial law in New Orleans to defend against a British invasion. Martial law has also been declared in response to natural disasters, such as the Great Chicago Fire of 1871, the 1906 San Francisco earthquake, and the Omaha race riot of 1919. In 1892, the governor of Coeur d'Alene, Idaho, declared martial law after striking mineworkers blew up a mill and killed one person. More recently, in 1963, martial law was declared during the Civil Rights Movement in response to the Cambridge riot.
While the US President and Congress can impose martial law within certain constraints, states have declared it more often. Nearly every state governor has the power to impose martial law within their state's borders. The Posse Comitatus Act of 1878 prevents the US military from participating in civilian law enforcement without congressional approval, strengthening the separation of powers between Congress and the President. The Insurrection Act of 1807, meanwhile, allows the President to deploy the military to address rebellions and support local law enforcement.
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Martial law is not defined in the US Constitution
The US Constitution does not define martial law. Its application and limits have been defined by its use throughout history. Martial law generally refers to when the military temporarily takes over civilian authority and imposes its own rules. Federal laws usually prevent the military from acting within the country. However, the President can call on the military to help local governments in the event of a natural disaster or civil unrest, but their powers are limited.
The Constitution Annotated notes that there are two theories regarding the source of the power to declare martial law. The first theory suggests that martial law does not come from any direct authority but rather "arises from the nature of things, being the law of paramount necessity". In other words, it stems from the government's right, power, and/or duty to "maintain public order" and keep the peace. The second theory argues that the Constitution's enumerated war powers give both Congress and the President the power to declare martial law, as Articles I and II grant each branch some control over the military.
The Posse Comitatus Act of 1878 prevents the US military from engaging in civilian law enforcement activities without congressional approval, strengthening the separation of powers between Congress and the President. The Insurrection Act of 1807, on the other hand, allows the President to deploy the military to suppress rebellions and assist local law enforcement.
The concept of martial law is closely tied to the right of habeas corpus, which is the right to a hearing and trial for lawful imprisonment. Article 1, Section 9 of the US Constitution states that habeas corpus can only be suspended in cases of rebellion or invasion where public safety is at risk. While there have been instances of the military being used within the US, such as during the Whiskey Rebellion, these do not constitute a declaration of martial law.
In summary, while the US Constitution does not explicitly define martial law, its application and limits have been shaped by historical precedents. The power to declare martial law is derived from the government's duty to maintain public order and the war powers granted to Congress and the President. However, the Posse Comitatus Act and Insurrection Act provide checks and balances on the use of martial law, and the right of habeas corpus remains a crucial consideration.
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Martial law can be declared in response to rebellion or invasion
In the United States, martial law has been declared at least 68 times, usually in limited, local areas. Martial law can be declared by the US President or US Congress, as well as by state governors within their state borders. While the US Constitution does not define martial law, it has been interpreted as the military temporarily substituting its authority for civilian authority.
In the case of invasion, the US government is obligated to protect each state against invasion under the Guarantee Clause. This allows for unilateral federal action, meaning the affected state does not need to request help before the federal government can act.
Historically, martial law 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 labor dispute, four times for natural disaster, and fifteen times for other reasons. Notable instances of martial law being declared in response to rebellion or invasion include:
- Virginia in 1775, where Lord Dunmore, the royal governor, declared martial law and offered freedom to indentured servants and enslaved individuals who joined British forces against rebelling colonists.
- New Orleans in 1814, where General Andrew Jackson declared martial law to defend against an invading British army.
- Kentucky, Maryland, and Missouri in 1863, where President Lincoln imposed Congressionally authorized martial law during the Civil War.
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Frequently asked questions
Yes, the US can declare martial law. In nearly every state, the governor has the power to impose martial law within the borders of the state. The US President and US Congress can also impose martial law, within certain constraints.
Martial law refers to when the military temporarily substitutes its authority in place of civilian authority. It occurs when the army takes over a civilian area and imposes its own rules.
Martial law has been declared in the US at least 68 times, usually in limited, local areas. Some notable examples include:
- 1814, near the end of the War of 1812, in New Orleans
- 1871, in Chicago, following the Great Chicago Fire
- 1906, in San Francisco, following an earthquake
- 1919, in Omaha, during a race riot
- 1963, in Cambridge, during the Civil Rights Movement
Yes, the US President can declare martial law, although this power is limited. The Posse Comitatus Act of 1878 prevents the US military from participating in civilian law enforcement activities. However, the Insurrection Act of 1807 allows the President to deploy military forces to put down rebellions, insurrections, or domestic violence within the US.
