Cecily Zamora
Martial law is a vague and controversial concept that involves the temporary substitution of military authority for civilian rule. It is often declared in times of war, rebellion, or natural disaster, and grants the military commander of an area or country the authority to make and enforce laws. While the exact process of declaring martial law varies across different countries and legal systems, this paragraph will focus on the declaration of martial law in the United States as an example. In the U.S., the power to declare martial law typically rests with state governors, who can invoke it during emergencies, natural disasters, or civil unrest. The U.S. President also has the ability to declare martial law, but this power is more restricted and often requires congressional authorization.
| Characteristics | Values |
|---|---|
| Frequency | Martial law has been declared more than 60 times in U.S. history, mostly by state and local officials. |
| Legal basis | The U.S. Constitution does not define or specify who can declare martial law. The Supreme Court has held that individual states have the power to declare martial law if authorized by the state constitution, laws of the state, or in specific circumstances. |
| Scope | Martial law involves the temporary substitution of military authority for civilian rule, allowing the military to enforce its own laws and suspend civil authority. |
| Examples | Curfews, restricting public gatherings, detention of individuals, and takeover of local governments. |
| Limitations | The Posse Comitatus Act prevents federal military forces from participating in civilian law enforcement activities without express congressional authorization. The Insurrection Act allows the president to deploy military forces domestically to suppress insurrections, rebellions, or domestic violence. |
| Judicial review | Individuals can challenge a declaration of martial law through a petition for a writ of habeas corpus. |
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What You'll Learn
Who can declare martial law
The power to declare martial law varies across different countries. In the United States, the president, Congress, or a local military commander may impose degrees of martial law under specific situations. According to the Brennan Center for Justice, a nonpartisan law and policy institute, martial law has been declared in the US about 68 times. However, the US Constitution does not explicitly grant the president the power to declare martial law, and there is debate over whether the president has the authority to do so. Some scholars argue that the president has the executive power to declare martial law, while others believe the president needs congressional authorization. State officials, such as governors, also have the power to declare martial law within their respective states, as seen in the example of Governor James Peabody in Colorado.
In other countries, the power to declare martial law may lie with different branches of the government or specific individuals. For instance, in Bangladesh, martial law was declared by Chief Martial Law administrators like Ziaur Rahman and Hussain Muhammad Ershad. In China, during the Qing dynasty, a draft constitution included provisions for the Beiyang government to declare martial law. In India, Article 34 of the constitution gives Parliament the power to indemnify persons in respect of acts done in territories where martial law was in force. During the colonial era in India, martial law was effectively declared by the British through the Defense of India Act in 1915 and 1939.
The legal basis for declaring martial law can vary, and it is often a complex and debated topic. In some cases, it may be justified by the common law doctrine of necessity, as seen in the United States and Pakistan. In Canada, the War Measures Act was a statute that allowed the government to assume emergency powers, although it stopped short of declaring martial law as justice remained in the hands of the courts.
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Martial law and the US constitution
In the United States, martial law refers to a power that, in an emergency, allows the military to take the place of the civilian government and exercise jurisdiction over civilians in a particular area. However, the term “martial law" is not defined in federal law, and the exact scope and limits of martial law are dangerously unclear. The US Constitution does not give the president "conclusive and preclusive" authority over the domestic use of the military and, instead, explicitly vests power in the legislative branch.
The Posse Comitatus Act makes it illegal for federal military forces to participate in civilian law enforcement activities without congressional approval. The Supreme Court has held that individual states have the power to declare martial law if it is authorized by the constitution or laws of the state. States have declared martial law far more frequently than the federal government. For example, in 1903, Colorado Governor James Peabody declared martial law in Cripple Creek and Telluride to break a peaceful strike by the Western Federation of Miners.
Even under martial law, the government cannot suspend or violate constitutional rights. Martial law declarations are subject to judicial review, and individuals detained by the military can ask a federal court to order their release by petitioning for a writ of habeas corpus. The Suspension Clause of Article I of the United States Constitution has been used to justify the imposition of martial law, as in the case of West Virginia during the West Virginia Coal Wars (1920-1921).
In United States law, martial law is limited by several court decisions handed down between the American Civil War and World War II. In 1878, Congress passed the Posse Comitatus Act, which forbids US military involvement in domestic law enforcement without congressional approval. The Supreme Court has ruled that a presidential imposition of martial law by suspending habeas corpus is unconstitutional in areas where local courts are still in session.
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Martial law in history
Martial law has been declared over 60 times in US history, mostly by state and local officials. In the US, martial law usually refers to a power that, in an emergency, allows the military to take the place of the civilian government and exercise jurisdiction over civilians in a particular area. Laws are enforced by soldiers, policy decisions are made by military officers, and people accused of crimes are brought before military tribunals.
In US history, martial law has been declared in the following circumstances:
- New Orleans during the Battle of New Orleans
- After major disasters, such as the Great Chicago Fire of 1871 and the 1906 San Francisco earthquake
- During riots, such as the Omaha race riot of 1919 and the 1920 Lexington riots
- During the Civil Rights Movement in response to the Cambridge riot of 1963
- During the British Raj, in the Defense of India Act, 1915 and the Defense of India Act, 1939
- In most of the Punjab during 1919 in response to tensions caused by the Amritsar Massacre
- In the Province of Lower Canada during the 1837–1838 insurrections
- In China, in the final year of the Qing dynasty
- In Taiwan from 1949 to 1987, to suppress Communist activities
- In Beijing in 1989 following the Tiananmen Square protests
- In Bangladesh several times, including in the late 1970s after Mujib was assassinated, and in the early 1980s
- In the Philippines in 2009 and 2017, in response to violent political incidents
While the US federal government is bound by the Constitution at all times, even under martial law, and cannot suspend or violate constitutional rights, the term "martial law" does not have an established definition in US law. This has led to ambiguities and a lack of clarity around the scope and limits of presidential powers in relation to martial law.
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Martial law and troop deployment
Martial law is a temporary substitution of military authority for civilian rule. It is usually invoked in times of war, rebellion, or natural disaster, and it grants the military commander of an area or country the authority to make and enforce laws. While the exact scope and limits of martial law are unclear, it is generally understood to involve the suspension of civil freedoms and constitutional rights.
In the United States, martial law has been declared about 68 times, mostly by state and local officials during times of labour unrest. Federal troops have been used to enforce law and order without an official declaration of martial law, and they have been utilized at least 14 times under the Insurrection Act before the 1990s and 23 times since 1992 under the Posse Comitatus Act. The Insurrection Act allows the president to deploy military forces domestically to suppress insurrections, rebellions, or domestic violence when necessary to enforce federal laws and maintain public order. The Posse Comitatus Act makes it illegal for federal military forces to participate in civilian law enforcement activities unless authorized by Congress.
The deployment of troops under these statutes might appear similar to a declaration of martial law. For example, in 1932, President Herbert Hoover directed the military to clear protesting veterans and their families from an encampment near the US Capitol, an action that was not well-received by the public. In another instance, President George W. Bush placed foreign detainees in a prison in Guantanamo Bay, Cuba, outside of US court jurisdiction, and was later overruled by the Supreme Court.
While the US Constitution does not explicitly define when a president can declare martial law, it also does not specifically forbid it. However, the Posse Comitatus Act places clear restrictions on the president's ability to use the military domestically, and a presidential declaration of martial law would violate these rules.
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Martial law and civilian rights
Martial law is the temporary substitution of civilian government by military rule and the suspension of civilian legal processes for military powers. It is usually invoked in times of war, rebellion, civil unrest, natural disasters, or military coups d'état. During periods of martial law, standard civil liberties may be suspended, and civilians may be tried by military tribunals if civilian courts are unavailable.
In the United States, the president does not have the authority to declare martial law. This power rests with state officials and Congress, which has placed clear restrictions on the president's ability to use the military domestically. The Posse Comitatus Act, for example, makes it illegal for federal military forces to participate in civilian law enforcement activities without express authorisation from Congress.
Even under martial law, the government cannot suspend or violate constitutional rights. Martial law declarations are subject to judicial review, and individuals detained by the military can petition for a writ of habeas corpus. The Supreme Court has held that individual states have the power to declare martial law as long as it is authorised by the constitution or laws of the state. However, state officials must abide by the U.S. Constitution and valid federal laws, and their actions are subject to review in federal court.
While the exact scope and limits of martial law are often unclear, it is important to recognise that it arises from necessity rather than legal right in many cases. The implementation of martial law should be carefully considered and subjected to the appropriate legal and constitutional checks and balances to ensure the protection of civilian rights.
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Frequently asked questions
The US Constitution does not define who can declare martial law, and it has never been explicitly authorised by Congress. However, several presidents and state governors have imposed or approved declarations of martial law. The Supreme Court has held that individual states have the power to declare martial law.
Martial law involves the temporary substitution of military authority for civilian rule. Military leaders may create and enforce their own laws, and may detain people and take over local governments and their responsibilities. All civilian laws are suspended, and civil freedoms and constitutional rights may be curbed.
Martial law can occur in stages, without ever getting to a total military takeover. Under total martial law, the normal law enforcement and legal system is replaced by a stricter set of laws and punishments that is completely controlled by the military or executive branch of the government.
