Select personalised content. Create a personalised content profile. Measure ad performance. Select basic ads. Create a personalised ads profile. Select personalised ads. Apply market research to generate audience insights. Measure content performance. Develop and improve products. List of Partners vendors. Martial law is a law administered by the military rather than a civilian government. Martial law may be declared in an emergency or response to a crisis, or to control occupied territory.
The declaration of martial law is a rare and momentous decision for a civilian government to make and for a good reason. When martial law is declared, civilian control of some or all aspects of government operations is ceded to the military. This means that, in the case of elected governments, the representatives chosen by the voting population are no longer in power.
Civilians have thus ceded control of the country in exchange for the potential restoration of order with the possibility that control may not be reclaimed in the future. When martial law is declared, civil liberties, such as the right to free movement, free speech , or protection from unreasonable searches, can be suspended.
The justice system that typically handles issues of criminal and civil law is replaced with a military justice system, such as a military tribunal. Civilians may be arrested for violating curfews or for offenses that, in normal times, would not be considered serious enough to warrant detention. Laws relating to habeas corpus that are designed to prevent unlawful detention may also be suspended, allowing the military to detain individuals indefinitely without the possibility of recourse.
Considering the negative ramifications martial law can have on a country and its citizens, declaring martial law is a last resort reserved for situations where law and order are rapidly deteriorating. For example, in , the governor of Idaho instituted martial law after a group of rebellious mine workers blew up a mill, which leveled a four-story building and killed several people. The U. Martial law turns that relationship on its head.
The displacement of civilian government distinguishes it from other emergency powers, such as the suspension of the writ of habeas corpus. Suspending the writ allows the government to detain and hold individuals without charge but does not imply any unusual role for the armed forces. While a declaration of martial law might be accompanied by a suspension of habeas corpus, they are distinct concepts. Martial law has not always meant what it does today.
Collins, Martial Law and English Laws, c. This is the law that applies when a soldier is court-martialed. Before that time, the idea of allowing military rule in an emergency was considered outrageous — as evidenced by the national reaction to the first declaration of martial law in U. In December , toward the end of the War of , Gen. Andrew Jackson led a small army in the defense of New Orleans against a much larger invading British force.
As part of his defensive preparations, Jackson imposed martial law on the city. He censored the press, enforced a curfew, and detained numerous civilians without charge. Moreover, he continued military rule for more than two months after his famous victory at the Battle of New Orleans had ended any real threat from the British. Jackson argued that his actions were justified because the government in New Orleans had ceased to function as a result of the impending British attack, leaving the military as the only body able to protect the city.
This was a novel argument, and it did little to explain why he kept the city under martial law for so long. The founding generation had been deeply suspicious of military power. Duncan et al. Syndics, 1 Harr. Similarly, acting Secretary of War Alexander Dallas explained in a letter to Jackson that martial law had no legal existence in the United States outside of the Articles of War, the predecessor to the modern Uniform Code of Military Justice.
Franklin Jameson, eds. Overall, the consensus in was that martial law was simply another term for military law, and that military jurisdiction could extend no further than the armed forces themselves. Jackson paid the fine, and for the next 27 years, nothing more came of the incident. However, in the early s, the now-aging former president orchestrated a campaign in Congress to refund him the cost of the fine, plus interest.
The ensuing congressional refund debates marked the beginning of a shift in how Americans understood martial law. He got exactly what he wanted. In , after efforts to reform this system had been rebuffed for years, a large group of Rhode Islanders led by Thomas Dorr organized its own constitutional convention, adopted a new constitution, held elections, and declared itself the true government of Rhode Island.
When Dorr rallied his supporters to assert their authority by force, the Rhode Island General Assembly declared martial law and called out the state militia to suppress the rebellion.
In , the U. By endorsing the constitutionality of martial law, the Supreme Court finished what Congress had started with the refund bill. The Luther decision makes clear that martial law exists as an emergency power that can be invoked in the United States, at least by state legislatures. But Luther also leaves many questions unanswered.
It does not explain the legal basis for martial law, its scope, when it may be declared, or who is authorized to declare it. Indeed, the Supreme Court has never directly held, in Luther or any subsequent case, that the federal government has the power to impose martial law. It assumed the same in another case, but only for the purpose of deciding a narrower legal question. Neither of those decisions conclusively affirms that a federal martial law power exists.
Over time, however, consistency of practice has papered over gaps in the legal theory. The United States made extensive use of martial law during the Civil War, imposing it on border states like Missouri and Kentucky where U. The Confederacy, too, relied on it heavily. Neely Jr. The practice did not end with the war: in the 90 years between the start of the Civil War and the end of World War II, martial law was declared at least 60 times.
What had been manifestly unconstitutional in the eyes of the Louisiana Supreme Court in had become a relatively ordinary part of American life by the end of the 19th century. States — and state governors in particular — have declared martial law far more often than the federal government. However, no state legislature has done so since the Rhode Island General Assembly in Many cases involved the use of the military to reinforce local police.
In other cases, however, troops effectively replaced the police, and in some instances, they were used to impose the will of state or local officials rather than to enforce the law. State officials have sometimes declared martial law in response to violent civil unrest or natural disasters, such as the Akron Riot of or the Galveston hurricane.
Far more often, however, they have used martial law to break labor strikes on behalf of business interests. For example, in September , at the request of mine owners, Colorado Governor James Peabody declared martial law in Cripple Creek and Telluride to break a peaceful strike by the Western Federation of Miners.
The Colorado National Guard conducted mass arrests of striking workers and detained them in open-air bull pens.
Rivers, 31 F. Misuses of martial law were not confined to Georgia. At the climax of the conflict, Sterling imposed martial law on several counties — despite the total absence of violence or threats of violence — and deployed the Texas National Guard to enforce the regulation. He declared that the federal courts had no power to review his decision.
It ordered Texas to stop using the military or any other means to enforce the regulation. The federal government has used martial law far less frequently than the states, imposing it only a few times since the end of Reconstruction. Generals have declared it more often than the president, such as in , when U.
Army Gen. Francis C. Marshall imposed martial law on Lexington, Kentucky, in order to suppress a lynch mob attempting to storm the courthouse. Most recently, the federal government declared martial law in Hawaii after the Japanese attack on Pearl Harbor in , which initiated three years of absolute military rule in the islands.
As abruptly as it took hold in the mid th century, martial law disappeared from American life after World War II. The federal government has not declared martial law since it restored civilian rule to Hawaii in At the state level, martial law was last declared in , when Maryland Governor J.
Millard Tawes imposed it on the city of Cambridge for more than a year in response to clashes between racial justice advocates and segregationists. But even if the power to declare martial law has not been used in decades, it still exists in the case law and in the record books — and it remains poorly understood.
The Court has never explained the legal basis for martial law. It has implied that the federal government can declare it but has never said so conclusively. When discussing the possibility of a federal martial law power, the Court has never clearly indicated whether the president could unilaterally declare martial law or if Congress would first need to authorize it. Insofar as the Supreme Court has said anything on these questions, its statements have been inconsistent.
Diekelman, 92 U. Note that both the portion of Luther that Chief Justice Stone cites and the rest of his opinion directly contradict his own opening proposition. During World War II, the Court assumed without deciding that Congress could authorize a federal declaration of martial law but did not make clear whether that authorization was required. In contrast, in a much earlier but influential concurring opinion, Chief Justice Salmon Chase did conclude that federal martial law exists and that it must be authorized by Congress.
It is also old: even the most recent Supreme Court decision on martial law — Duncan v. Kahanamoku , decided in — predates many significant developments in U.
Sawyer, U. Ohio, U. United States, U. Connecticut, U. Arizona, U. Rumsfeld, U. Bush, U. The precedents thus provide little help in determining the legal basis for martial law — or, assuming that federal martial law is even permissible, whether its use is controlled by Congress or the president.
Texas, U. Regan, U. Consider, for example, if the president were to declare martial law over the U. In that hypothetical scenario, a federal court would likely apply Youngstown to decide whether the president had exceeded executive authority.
Under Youngstown , the courts show varying degrees of deference to presidential action, depending on whether the president is acting in accordance with or contrary to the will of Congress. The court will uphold the action unless the federal government, as a whole, lacks the power to act. These actions are impermissible unless Congress has overstepped its own powers.
This language acknowledges the possibility that martial law might exist as an emergency power, despite the lack of any express provision for it in the Constitution. It does not, however, suggest where that power lies, and certainly does not indicate that it belongs solely to the executive branch.
Nor does it render the three-zone test inapplicable in the context of martial law. We start with what Congress has said: Congress has legislated so extensively with respect to the domestic use of the military — through, for example, the Posse Comitatus Act, the Insurrection Act, the Stafford Act, the Non Detention Act, and various other provisions within Title 10 of the U.
Furthermore, the Posse Comitatus Act creates a general rule that it is unlawful for federal military forces to engage in civilian law enforcement activities — even if they are merely supplementing rather than supplanting civilian authorities — except when doing so is expressly authorized by Congress.
The Posse Comitatus Act nominally allows for constitutional exceptions to its general rule, but none exists. As it is generally understood, martial law necessarily involves military participation in civilian law enforcement. While there are a number of statutory exceptions to the Posse Comitatus Act, none of them authorizes the president to declare martial law, as part III of this report explains.
Barreme, 6 U. On the contrary, it gives most of the relevant authority to Congress. Therefore, under Youngstown , the president would not have the constitutional authority to override the restrictions Congress has put in place, and a unilateral declaration of martial law would not survive a legal challenge. There are no existing federal statutes that authorize the president to declare martial law. However, while Congress has passed a multitude of laws related to domestic military deployment, these laws do not only create restrictions.
Congress has also given the president considerable authority to use troops domestically in ways short of martial law. The Insurrection Act, and potentially Title 32 as well, allow the president to deploy the military to assist civilian authorities with law enforcement activities virtually whenever and wherever the president chooses. In some scenarios, a deployment of troops under these statutes might appear similar to a declaration of martial law.
The federal government is bound at all times by the Constitution. Even under martial law, the government cannot suspend or violate constitutional rights. Additionally, martial law declarations are subject to judicial review. For example, if the federal government places a state or territory under martial law, individuals detained by the military can ask a federal court to order their release by petitioning for the writ of habeas corpus.
Subsequently, if a court considers the petition, it can decide whether the declaration of martial law was constitutional in the first place. The Supreme Court has held that individual states have the power to declare martial law — and such a declaration is valid simply if it is authorized by the constitution or laws of the state.
States have declared martial law far more frequently than the federal government. However, even under martial law, state officials are bound both by the U. Constitution and by valid federal laws.
Additionally, individuals can challenge a state declaration of martial law by seeking injunctive relief in federal court — and if they are detained, they can petition for the writ of habeas corpus.
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