Martial Law

 

Overview

According to the Supreme Court, the there is no precise meaning to the term ‘martial law’ . The Constitution does not mention ‘martial law’ at all; and Congress never defined the term. Today, the idea of martial law is considered in the context of an impending doomsday scenario or massive socio-economic crisis.

 

The most common definition is that martial law is the temporary government set up by a military force after the civil government has been paralyzed, overthrown, or overpowered. Specific examples include invasion, insurrection, or anarchy. In short, military authorities employ martial law to maintain public order and to protect people and property when the civil government collapses.

 

Generally, martial law supersedes all civil authority during the period in which it is in operation, and it can only exist -- and military power can only be exercised--  over the property of the citizens. 

 

History

Many people would be surprised, however, to find out that martial law is steeped in American history. Several examples include:

  • General (and later President) Andrew Jackson placed the City of New Orleans under martial law in 1812 
  • President Abraham Lincoln placed many areas of the U.S. under martial law during the Civil War.
  • State governors across the country invoked martial law to put down labor uprisings in the 1900s.
  • And most famously, the governor of Hawaii, with the approval of President Franklin D. Roosevelt, placed Hawaii under martial law for over two years after Pearl Harbor in 1941

 

Things to Know About Martial Law

  • Many states have laws that authorize the institution of martial law in any town, city, or municipality if there is an insurrection, rioting, or an invasion
  • Martial law does not include when the governor calls upon state troops to put down an insurrection or riot
  • In times of peace, a state governor is powerless to declare martial law in the strict and absolute sense because the Constitutional protections of the right to trial by jury and habeas corpus
  • If state and local courts can still function during a crisis, military orders and tribunals cannot take over and supplant the power of the courts
  • Even if there's warfare, insurrection, or rioting in somewhere in the state, or even if the governor pronounces martial law, it can't go into effect until there are means to enforce it -- "boots on the ground".

Martial Law in the States

In the states, the power to invoke martial law is given to the governor. Eighteen states provide give the governor authority to declare martial law. Unfortunately, in the last fifty years, state legislatures have given governors more and more power to invoke martial law.   

  • Eight states mention martial law in their constitutions, but only Alaska and Rhode Island expressly authorize the governor to exercise martial law under certain circumstances.
  • In Massachusetts, New Hampshire, and South Carolina the legislature has the constitutional right to invoke martial law
  • Maryland, Vermont, and Tennessee prohibit martial law in their respective constitutions

 

Under state law, for martial law can be invoked by the governor, there must be some condition or trigger. In many states, such conditions are vague. For example, under Missouri law the governor can proclaim martial law “when in [the governor's] opinion the circumstances so warrant."

 

The U.S. Supreme Court uses the Fourteenth Amendment as a check upon governors' powers in emergency situations. Together with the increasing martial law powers at the state level, the Supreme Court has heightened the scrutiny it traditionally applies in examining instances of state martial law. 

 

Scope of Arrests

During martial law, military authorities can arrest and detain civilians if it appears to be necessary to restore or maintain public order or to protect people or property. Military officers have the authority to not arrest those who are reasonably believed to be engaged in insurrection or disorder; they can detain them without any due process rights.

 

 

 

 

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