It is difficult these days not to come upon some pessimistic patriotic commentator expressing the fear that something called “martial law” may soon be imposed on this country, as the General Government’s response to a new “terrorist attack”, or to the economic and social chaos arising out of a collapse of the monetary and banking systems, or to some other dire event that frightens hapless Americans into trading a sure and certain loss of their liberties for a dollop of conjectural safety.
An optimistic patriot might scoff at such fears. But both pessimists and optimists typically share the same implicit first premise: namely, that the form of “martial law” they have in mind is legitimate. Most of the time, this is a rather glaring and dangerous error.
In legal analysis, definitions of terms make all the difference. And “martial law” can be defined in at least four ways:
· First, the term could denote the law that Congress may enact for governance of the Armed Forces and “the Militia of the several States”. This kind of “martial law” is plainly legitimate, because the Constitution delegates to Congress the powers “[t]o make Rules for the Government and Regulation of the land and naval Forces” and “[t]o provide * * * for governing such Part of the[ Militia of the several States] as may be employed in the Service of the United States, reserving to the States, respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress”. [U.S. Const. art. I, § 8, cls. 14 and 16.] With respect to “the land and naval Forces” such “martial law” applies at all times. With respect to the Militia, it applies only when the latter have been “call[ed] forth * * * to execute the Laws of the Union, suppress Insurrections and repel Invasions”. [U.S. Const. art. I, § 8, cl. 15.] With respect to everyone else, though, it applies not at all. This absolute separation the Fifth Amendment confirms: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”. “Martial law” (in this first sense), which may (but need not necessarily) dispense with “Grand Jur[ies]”, applies only to “the land and naval forces” and to the Militia in time of “War” (“repel[ling] Invasions”) or “public danger” (“execut[ing] the Laws of the Union” and “suppress[ing] Insurrections”), and to no one else.
It would be clearer, though, not to describe these matters as involving “martial law, but instead to refer to them with particularity (as the Constitution does) as, say, “rules for the government and regulation of the land and naval forces” and “rules for governing part of the Militia under certain conditions”. Then their application only to individuals in the Armed Forces (at all times and everywhere) and in the Militia (when “call[ed] forth” for the three constitutional purposes)—and their inapplicability to anyone else at any time, anywhere, for any reason—would immediately and always be beyond cavil.
· Second, the term “martial law” may denote the direct control of civilians by military personnel operating in those territories where civilians are present, but no effective (or even any) civilian government exists. For example, during a war, in the front lines and rear echelons, as well as in places in the immediate vicinity where no actual fighting with the enemy may be going on, but the civilian authorities have been destroyed or driven out as a consequence of previous fighting. Or, after some huge natural disaster, mammoth industrial accident, or “terrorists’ strike”, across a wide area in which every important civilian administration has been rendered inoperative. The justification for “martial law” in these cases is that, if the enforcement of civilian law is well-nigh impossible, some other form of order must be set up for the benefit of the civilians themselves who cannot be evacuated. To be sure, in a zone of military operations, crimes such as espionage, sabotage, banditry, looting, and otherwise terrorizing civilians have to be detected, tried, and punished as quickly as possible. But in the case of many (and probably most) other crimes, civilian suspects could simply be arrested and be held for later trial in civilian courts, under civilian law. And military personnel could perform the essentially “police” functions of detection, apprehension, and detention in keeping with the procedures and safeguards of civilian law, too.
· Third, the term “martial law” may denote outright military control of some area in which military personnel simply suppress the local civilian authorities and dictate to civilians under the threat of main force. Whether or not the military personnel are following some specific “code of military law”, “martial law” in this sense purports to set aside the Constitution and all of the other “Laws of the Union” and to substitute therefore the orders of officers in the Armed Forces. And any civilian who violates these orders—even if he is acting pursuant to the Constitution and other “Laws of the Union”—may be punished, perhaps unto death itself. Although many Americans might acquiesce in “martial law” of this variety if it were the only available and unavoidable response to an actual natural disaster, economic crisis, or other political or social upheaval of severe magnitude, many other Americans fear that public officials bent on usurpation and tyranny, on the pretext of some phony “emergency” that they themselves have created, will deploy the Armed Forces, along with various para-militarized State and local police and sheriffs’ departments, throughout the United States for the purpose, not of protecting, but of oppressing common Americans. Obviously, neither public officials nor officers of the Armed Forces can rationalize their imposition of “martial law” in some geographical area by themselves destroying, driving out, or otherwise suppressing the civilian authorities on the claim of an “emergency” that does not really exist. Once “martial law” has been imposed, however, a real “emergency” will exist—not least of all in the inability of civilian authorities and local residents to resist the oppressive forces occupying their territory. So “martial law” in this sense can amount to a self-fulfilling prophecy: Aspiring usurpers and tyrants in public office claim that an “emergency” exists. They declare “martial law” and deploy troops and para-militarized police forces. The imposition of “martial law” creates a real “emergency” of which average Americans have had no experience and for which they are totally unprepared. The resulting destruction of popular self-government rationalizes the maintenance of “martial law”.
The question, though, remains: Is “martial law” of this third variety legal in America? The answer demands painstaking analysis of the Constitution, which requires putting one’s self in the position of Americans in the late 1700s so as to understand what they understood. At that time, William Blackstone’s Commentaries on the Laws of England was the most satisfactory exposition of the law available to Americans. “[M]ore copies of the work had been sold in this country than in England, so * * * undoubtedly the framers of the Constitution were familiar with it.” [Schick v. United States, 195 U.S. 65, 69 (1904).] Blackstone was highly critical and deeply suspicious of “martial law”:
“WHEN the nation [i.e., England] was engaged in war, more veteran troops and more regular discipline were esteemed to be necessary, than could be expected from a mere militia. And therefore at such times more rigorous methods were put in use of the raising of armies and the due regulation and discipline of the soldiery: which are to be looked upon only as temporary excrescences bred out of the distemper of the state, and not as any part of the permanent and perpetual laws of the kingdom. For martial law, which is based upon no settled principles, but is entirely arbitrary in it’s decisions, is * * * in truth and reality no law, but something indulged, rather than allowed as a law: the necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land. * * * And it is laid down, that if a lieutenant, doth in time of peace hang or otherwise execute any man by colour of martial law, this is murder; for it is against magna carta. And the petition of right enacts * * * that no commission shall issue to proceed within this land, according to martial law.”[American Edition (1771), Volume 1, at 412 (footnotes omitted).]
Patriotic Americans in the late 1700s thought no better of “martial law”. Here, the Declaration of Independence provides compelling evidence. As the Declaration recounted:
The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.—
* * * * *
He has affected to render the Military independent of and superior to the Civil power.—
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:—
For quartering large bodies of armed troops among us:—
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States[.]
In this litany of the most egregious aspects of “martial law”, the worst is that “He has affected to render the Military independent of and superior to the Civil power”—for , if that can be done, then all the rest (and even more) will inevitably follow, inasmuch as no one will have any legal recourse against whatever the executors of “martial law” may choose to do.
No American alive today can believe that the men who wrote the Declaration of Independence, who acted upon it to separate the Colonies from and to conduct a long and sanguinary war against Great Britain, and who upon the strength of the Declaration then enacted constitutions for their States and the United States ever imagined that the powers to behave in the fashion of George III—powers that he had used to bring about “a long train of abuses and usurpations, pursuing invariably the same Object [that] evince[d] a design to reduce [Americans] under absolute Despotism”; and powers the very use of which justified the invocation and exercise of “the[ people’s] right, * * * their duty, to throw off such Government, and to provide new Guards for their future security”—were among the “just powers” that “Governments * * * instituted among Men, deriv[e] * * * from the consent of the governed”. And no American alive today can believe that WE THE PEOPLE in that era authorized the States and then the United States in their constitutions to do what the Declaration of Independence had just condemned as “abuses”, “injuries[,] and usurpations” aiming at nothing less than “absolute Despotism” and “absolute Tyranny”. Moreover, what Americans believed and incorporated into their fundamental law then retains operative force today. For if the Declaration of Independence did not state the necessary and sufficient legal principles upon which the Colonies became independent States, then everything the States and their people did thereafter is devoid of legal basis.
Perusal of the Constitution easily proves the illegitimacy of “martial law” in the third sense. “Martial law” of this type purports to set aside or suspend the Constitution and potentially all other “Laws of the Union”, upon the mere say-so of military officers (or of rogue civilian public officials colluding with military officers). Thus, “martial law” proceeds on the premise that it is the “supreme law” in this country. The Constitution, however, declares that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”. [Article VI, cl. 2.] And all public officials, including officers of the Armed Forces, “shall be bound by Oath or Affirmation, to support this Constitution”. [Article VI, cl. 3.] So, unless “martial law” is authorized by the Constitution itself, or by some constitutional “Laws of the United States” or constitutional “Treaties”, precisely to set aside or suspend the Constitution, then no public official, and no officer of the Armed Forces, can invoke, enforce, or act under color of it without thereby violating his “Oath or Affirmation” of office.
Even if “martial law” (in this third sense) were itself a “Law[ ] of the United States”, it could not set aside or suspend the Constitution of its own force, because no mere “Law[ ] of the United States” can have that effect. Any such purported “Law[ ]” would not be “in Pursuance [of the Constitution]” but in derogation and destruction of it. [See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-180 (1803); Miranda v. Arizona,384 U.S. 436, 491 (1966); United States v. Brignoni-Ponce, 422 U.S. 873, 877-878 (1975).] The same would be true were “martial law” purportedly allowed under one or more “Treaties”. For no “Treaties” can set aside or suspend the Constitution, either. [See, e.g., United States v. Wong Kim Ark, 169 U.S. 649, 701 (1898); Doe v. Braden, 57 U.S. (16 Howard) 635, 657 (1863); The Cherokee Tobacco, 78 U.S. (11 Wallace) 616, 620-621 (1871); Holden v. Joy, 84 U.S. (17 Wallace) 211, 243 (1872); Geofroy v. Riggs, 133 U.S. 258, 267 (1890); Asakura v. City of Seattle, 265 U.S. 332, 341 (1924); United States v. Minnesota, 270 U.S. 181, 208 (1926); Reid v. Covert, 354 U.S. 1, 16-18 (1957) (Black, J., announcing the judgment of the Court).] Therefore, unless within the Constitution itself lurks some power to set aside or suspend it, with no guarantee of its ever being reestablished, “martial law” is utterly impossible, as a direct contradiction of the Constitution’s legal supremacy. And no such power exists. For example—
(i) Congress cannot authorize “martial law” by dint of any of its express powers, because no such express power can be found in the Constitution. Congress cannot do it by dint of an implied power, either. For, although Congress does have the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution” its enumerated powers [Article I, § 8, cl. 18], none of its enumerated powers relates to “martial law”—and therefore no implied power can be exercised in relation to that subject. In any event, Congress can enact only “Laws” pursuant to both its express and its implied powers; and no mere “Law[ ]” can override the Constitution.
(ii) Neither can the President authorize “martial law”. Although the President is “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States” [Article II, § 2, cl. 1], in that capacity or any other he has no authority to make any “Laws of the United States”, or to set aside or suspend any of the “Laws” then in existence (unless perhaps those “Laws” themselves so provide). Rather, his constitutional duty is to “take Care that the Laws be faithfully executed” [Article II, § 3]. So, if no “Law[ ]” allowing “martial law” exists, the duty to “take Care that the Laws be faithfully executed” requires the President to refrain from any involvement whatsoever with “martial law”, except to prevent anyone else from attempting to impose it.
(iii) The President enjoys no greater power to impose “martial law” by combining with the Senate “to make Treaties” [Article II, § 2, cl. 2]. For, as noted above, “Treaties” cannot set aside or suspend the Constitution.
(iv) The Constitution does allow for “[t]he Privilege of the Writ of Habeas Corpus * * * [to] be suspended, * * * when in Cases of Rebellion or Invasion the public Safety may require it” [Article I, § 9, cl. 2]. But this does not amount to a power to invoke or execute “martial law”, because suspension of the writ has no necessary connection with “martial law”, howsoever defined. Suspension of the writ addresses merely one part of the civilian law, licensing civilian authorities to hold a suspect without bail, pending his trial. Although that part of the civilian law is temporarily suspended, no form of military law is, or need be, thereby substituted for it. Indeed, the Armed Forces play no part in the process at all. Importantly, the conditions precedent for suspension of the writ—i.e., “Rebellion or Invasion” sufficient to endanger “the public Safety”—involve situations which advocates of “martial law” claim justify it. Yet, even under in those situations, the Constitution does not suggest the propriety of, let alone call for, “martial law”, suspension of the writ alone being deemed sufficient to protect “the public Safety”.
(v) The Constitution mandates that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government” [Article IV, § 4]. By definition, “martial law” is not “a Republican Form of Government”. For the “definition of * * * a [republican] government is—one constructed on this principle, that the supreme power resides in the body of the people”. [Chisholm v. Georgia, 2 U.S. (2 Dallas) 419, 457 (1793) (Wilson, J.)] And “martial law” derives its powers purely and simply from military force, not from the people. For that very reason, “martial law” is not any form of “Government[ ]” that “deriv[es its] just powers from the consent of the governed”—the only form of “Government[ ]” which the Declaration of Independence allows in America. Thus, perforce of this constitutional provision alone, “martial law” cannot be imposed by the United States on any State. And if any State attempts to set up “martial law” on her own, the United States must put it down forthwith.
(vi) Inasmuch as the United States cannot impose the third variety of “martial law” in any State, and no State can impose such “martial law” within her own territory, where in America could “martial law” ever exist? Not even in the District of Columbia and in “all Places purchased by the Consent of the Legislature of the State in which the Same shall be”, over which “Places” the Constitution empowers Congress “[t]o exercise exclusive Legislation in all Cases whatsoever” [Article I, § 8, cl. 17]. For, even in those “Places”, Congress may not enact arbitrary legislation. As Blackstone pointed out, “martial law, which is based upon no settled principles, but is entirely arbitrary in it’s decisions, is * * * in truth and reality no law, but something indulged, rather than allowed as a law”. The very essence of “martial law” is vagueness, because no one can predict what orders military officers may pronounce on the spur of the moment, or how they may interpret or enforce them. Indeed, this very “flexibility” of “martial law” its advocates typically commend most highly. “[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application”, however, “violates the first essential of due process of law”. [Connally v. General Construction Company, 269 U.S. 385, 391 (1926).] So, even if “martial law” were explicitly enacted into some supposed statute, it would “violate[ ] the first essential of due process of law”, and therefore be unconstitutional—hardly a surprising result, though, given that “martial law * * * is * * * in truth and reality no law” at all.
(vii) The essence of “martial law” in this third sense may be vague, but its constitutional effect is pellucid: Any attempt to impose “martial law” by force is nothing less than “Treason”. The Constitution declares that “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort” [Article III, § 3, cl. 1]. And “if [‘War’] be actually levied, that is, if a body of men be actually assembled, for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors”. [Ex parte Bollman, 8 U.S. (4 Cranch) 75, 126 (1807).] In operation, “martial law” proceeds by arraying men under arms in order to set aside or suspend the Constitution of the United States, in whole or in part, and to employ those arms against anyone who resists—without any constitutional or other lawful authority for doing so. Therefore, inasmuch as “the United States” exists only perforce and through application of the Constitution, “martial law” amounts to “levying War against the[ United States]”. And inasmuch as WE THE PEOPLE are the authors and beneficiaries of the Constitution, “martial law” amounts as well to “levying War against” THE PEOPLE themselves. It would be immaterial that those who attempted to impose “martial law” wore uniforms (even with United States flags as shoulder patches), or held military commissions, or acted pursuant to orders from supposed superiors. Even someone who commits “Treason” under a claim of “good faith” is entitled to no immunity. This principle is part of the modern Law of Nations: “[T]hat the [officer] acted pursuant to order of his Government or of a superior shall not free him from responsibility”. [Charter of the International Military Tribunal (Nuremberg, Germany, 1945), art. 8.] And it subsists in American law of a far longer heritage. [E.g., Mitchell v. Harmony, 54 U.S. (13 Howard) 115, 137 (1851).]
In sum, “martial law” in the third sense of that term cannot exist in this country. It is a legal impossibility. Participation in it would constitute the most serious of all crimes. And it would supply just grounds for mass resistance among the citizenry aimed at overthrowing whatever purported governmental apparatus attempted to impose it. For, as the Declaration of Independence proclaims, under such circumstances “it is the[ people’s] right, it is their duty, to throw off such Government, and to provide new Guards for their future security”. And the Declaration of Independence is still very good law in America.
All that being so, who in his right mind would ever attempt to impose such a form of “martial law” on America? Perhaps no one. Yet Americans must be prepared for the possibility that individuals not in their right minds may somehow insinuate themselves into high public offices and the upper echelons of the officer corps of the Armed Forces, and from those points d’appui seek to transmogrify this country from a constitutional republic into a “national-security state”, a “garrison state”, or a “para-military police state”. It is not sufficient to contend that, insofar as responsible people with well-balanced minds presumably outnumber political psychopaths by many orders of magnitude, America has nothing to fear. For that would be true only if such right-thinking Americans were properly organized to meet the danger in the “well regulated Militia” which the Second Amendment to the Constitution itself tells them are “necessary to the security of a free State”.
· Thus, analysis arrives at the fourth definition of “martial law”—namely, when “the Militia of the several States” are “call[ed] forth * * * to execute the Laws of the Union, [or] suppress Insurrections” [Article I, § 8, cl. 15]. This would be “martial law” in the sense that the Militia would be performing a “police” function in a para-military fashion, according to their training and discipline. Nonetheless, it would be the exact opposite of “martial law” in the third sense described above, because, in application to civilians, the Militia would execute civilian law (“the Laws of the Union”). Moreover, as the Constitution plainly mandates in the generality of its language, when so “call[ed] forth” the Militia would be required to execute all of “the Laws of the Union”, including the Constitution and the Bill of Rights, both substantively and procedurally.
Besides being undoubtedly valid, because the Constitution provides for it in so many words, this form of “martial law” would never become politically dangerous. For unlike “martial law” of the third type, under color of which members of the Armed Forces would be deployed to repress people they did not know in localities in which they had never lived or worked, “martial law” centered on the Militia would always involve in the forefront of operations local Militiamen who could never be expected to oppress their own families, friends, neighbors, and co-workers. Indeed, if the territory being policed contained civilians, and least some of them would be members of the Militia—and therefore to a large extent the Militia would be policing themselves.
Unfortunately, “[a] well regulated Militia” of the constitutional pattern does not exist in a single State today. And none will exist until enough Americans who want this country to avoid having to relive the perilous circumstances that justified the Declaration of Independence come forward to correct this deficiency.