Anaya Nolan
Martial law involves the temporary substitution of military authority for civilian rule and is usually invoked in times of war, rebellion, or natural disaster. In the United States, the President alone cannot declare martial law without the prior authorization of Congress. The Constitution does not grant the President the power to declare martial law, and it does not define martial law or specify who can impose it. However, modern interpretations allow the President and state officials to declare degrees of martial law in specific circumstances. State governors also have the power to impose martial law within their state borders.
| Characteristics | Values |
|---|---|
| Country | United States |
| Who can declare martial law | The US President, US Congress, State governor |
| Constraints | Martial law can be imposed within specific borders |
| Number of times martial law has been declared | Over 60 times |
| Circumstances | War, rebellion, natural disaster, civil unrest, riots, labor dispute |
| Legal theory | Common law doctrine of necessity |
| Other countries | Canada, India, Pakistan, Bangladesh, China, Poland, Thailand, Egypt |
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What You'll Learn
US President and Congress
In the United States, martial law involves the temporary substitution of military authority for civilian rule. It is usually invoked in times of war, rebellion, or natural disaster. When martial law is in effect, the military commander of an area or country has unlimited authority to make and enforce laws, and all existing laws, civil authority, and the ordinary administration of justice are suspended.
The US Constitution does not define martial law and does not explicitly grant the President the power to declare it. While the President can call on the military to help local governments after a natural disaster, federal laws usually prevent the military from acting within the country. The Constitution vests power in the legislative branch, so the President cannot act against Congress's wishes in this area. Therefore, the President cannot unilaterally declare martial law without prior authorization from Congress.
However, there is a modern interpretation that 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, while others believe that Congressional authorization is required for the imposition of martial law in civilian areas. Congress may be the only governmental branch that can legally declare martial law, and the President can only act according to its actions.
On a national level, both the US President and Congress have the power, within certain constraints, to impose martial law since both can be in charge of the militia. Nearly every state has a constitutional provision authorizing the government to impose martial law, and state officials do have the power to declare martial law, although their actions must abide by the US Constitution and are subject to review in federal court.
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State governors
In the United States, state governors can declare martial law within the borders of their state. Nearly every state has a constitutional provision authorizing the government to impose martial law. In the past, state governors have declared martial law during times of labor unrest, civil unrest, and natural disasters. For example, in 1871, the Chicago mayor, Roswell B. Mason, declared martial law after the Great Chicago Fire. Similarly, in Coeur d'Alene, Idaho, the governor declared martial law after striking mineworkers blew up a mill and shot at strike-breaking workers.
The power to declare martial law is a significant responsibility and is typically considered a last resort, as it can be easily abused as a political tool to control the population, particularly those with dissenting political views. When martial law is in effect, the military commander of an area assumes unlimited authority to make and enforce laws, and civilian authority is suspended.
While the U.S. Constitution does not explicitly define when a president can declare martial law, it is generally accepted that the president and state officials can declare "degrees of martial law" in specific circumstances. For example, the Insurrection Act, enacted in 1807, allows the president to deploy military forces to suppress insurrections, rebellions, or domestic violence. However, the act of declaring martial law is not necessary for this to occur.
It is important to note that the declaration of martial law by state governors is a serious matter and should only be employed as a last resort to restore order and ensure public safety within the state's borders.
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Supreme Court rulings
The Supreme Court has addressed the legality of martial law on a handful of occasions, but the concept has never been well-defined, and the Court's reasoning in these decisions is inconsistent and vague. The Constitution does not mention martial law, and no act of Congress defines it.
In 1941, the governor of Hawaii declared martial law after the attack on Pearl Harbor. This was ratified by President Franklin D. Roosevelt two days later. In Duncan v. Kahanamoku (1946), the Supreme Court considered a challenge to that order by two civilians who had been convicted by military courts even though civilian courts were open. The Court ruled in favour of the civilians, overturning their convictions.
In 1952, the Supreme Court ruling in Youngstown Sheet & Tube Company v. Sawyer provided a framework for analyzing exercises of executive power. According to this ruling, when Congress has addressed an issue by passing a statute, the president cannot act against Congress's will unless the Constitution gives the president "conclusive and preclusive" power over that issue. This ruling would likely be used by a court to determine whether a president's martial law declaration exceeded executive authority.
The Supreme Court has also addressed the legality of martial law through several landmark cases, including Ex parte Merryman and Ex parte Milligan. These cases illustrate the tension between maintaining national security and upholding civil rights. The Court's decisions indicate that military authority is not absolute and must align with constitutional principles, especially when civilian courts are operational.
In summary, while the Supreme Court has recognized martial law as an implicit element of the constitutional framework, it has not conclusively ruled that the federal government or the president can declare it. The Court has affirmed that martial law can be permissible under specific circumstances but is subject to constitutional limitations.
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Foreign examples
Thailand
Martial law was declared in Thailand in 2006 and 2014 following a coup d'état.
Egypt
In 2013, Egypt also experienced a coup d'état, which led to the declaration of martial law.
China
In 1989, China declared martial law in response to the Tiananmen Square protests.
Poland
Martial law was imposed in Poland in 1981 to suppress political opposition.
Myanmar
In 2021, Myanmar's military, known as the Tatmadaw, overthrew the democratically elected members of the National League for Democracy. This led to protests, and the subsequent killing of over sixty-five protestors by security forces. As a result, the military junta declared martial law.
Historical Examples
Historically, martial law has been declared in various countries, including:
- Great Britain: In 1628, Sir Matthew Hale described martial law as "no Law, but something indulged rather than allowed as a Law."
- Germany: After World War II, Germany was under martial law during the reconstruction period.
- Japan: Similarly, Japan experienced martial law during the post-World War II reconstruction.
- United States: The United States has a history of declaring martial law, with over 60 instances, mostly by state and local officials. Examples include Virginia in 1775, New York in 1776, and New Orleans in 1814.
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Historical uses
Martial law has been declared frequently throughout history, though it is often described as a largely elusive legal entity. References to the concept date back to 1628 England, when Sir Matthew Hale stated that martial law was "no Law, but something indulged rather than allowed as a Law."
In the United States, martial law has been declared at least 68 times, with nearly every state having a constitutional provision authorizing the government to impose it. It has been used in a variety of circumstances, including during the Battle of New Orleans, after the Great Chicago Fire of 1871, and during the Civil Rights Movement. City mayors, state governors, generals, and state legislatures have all declared martial law at various times in US history. Notably, Oklahoma Governor William "Alfalfa Bill" Murray declared martial law at least 6 times during his tenure in the 1930s. During the Civil War, President Abraham Lincoln's administration also declared martial law in several states.
In other parts of the world, martial law has been imposed during periods of violent conflict, such as the Black War between British colonists and Aboriginal Australians in Tasmania during the 1820s, and the 2020 Nagorno-Karabakh War. It has also been used to suppress resistance or dissent, as seen in Pakistan in 1977 and in Taiwan from 1949 to 1987. More recently, martial law was declared in the Philippines in 2009 and 2017 in response to incidents of political violence and attacks by rebel groups.
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Frequently asked questions
While the US President and Congress have the power to impose martial law, it is usually declared by a state governor or state officials. The US Constitution does not explicitly grant the president the power to declare martial law, and it is widely believed that the president cannot unilaterally declare martial law.
Martial law involves the temporary substitution of military authority for civilian rule. It is usually invoked in times of war, rebellion, civil unrest, or natural disaster. When martial law is in effect, the military commander of an area or country has unlimited authority to make and enforce laws.
Martial law has been declared several times throughout history, including during the Boston Tea Party, the American Civil War, the Illinois Mormon War, and in Bangladesh following the assassination of Mujib in the 1970s.
