Last Updated on October 1, 2021 by Constitutional Militia
“Martial Law” in America’s Founding Era
The first and most important step towards elucidating the true meaning of America’s foundational legal documents is “to review the background and environment of the period in which th[ose documents were] fashioned and adopted”, “to place ourselves as nearly as possible in the condition of” the Americans of that era, and “to recall the contemporary or then recent history of the controversies of the subject” that still “were fresh in the memories of those who achieved our independence and established our form of government”. One must not, however, enter only the individual minds of the Framers of the Declaration, the original Constitution, and the Bill of Rights who drafted them, or the Founding Fathers who worked for their ratification, or others among the most prominent patriots of their time, but instead must search out the most probable consensus among all of the reasonably intelligent and informed Americans of personal integrity who supported independence and whom the Declaration singles out as “the good People of the[ ] Colonies”, whom the original Constitution identifies as WE THE PEOPLE”, and to whom the Bill of Rights repeatedly refers to as “the people”, the question then becomes: “How on the basis of their knowledge and experience would “the good People” in 1776, “WE THE PEOPLE” in 1788, and “the people” in 1791 have determined what the Declaration of Independence, the original Constitution, and then the Bill of Rights would have meant to them with respect to modern-day “martial governance”? To determine that it suffices to understand what those documents would have meant to Americans in that day with respect to the “martial law” with which they had become all to familiar.
“Martial Law” was of concern not just to every American patriot of the Founding Era who was conversant with pre-constitutional Anglo-American law, history, and political philosophy, either. As even America’s Founding Fathers’ preeminent legal mentor William Blackstone himself had observed: