Martial law and the Supreme Court
Martial law is a legal concept that allows military authorities to assume control and suspend certain civil liberties during times of crisis, particularly when national survival is at stake. While the U.S. Constitution does not explicitly authorize martial law, the Supreme Court has recognized it as an implicit element of the constitutional framework. Historical instances, such as during the Civil War and World War II, highlight the complex relationship between military actions and judicial oversight. The Supreme Court has addressed the legality of martial law through several landmark cases, affirming that while martial law can be permissible under specific circumstances, it is subject to constitutional limitations. Notably, cases like Ex parte Merryman and Ex parte Milligan 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. Furthermore, the application of martial law can differ significantly between federal and state jurisdictions, with individual states often having clearer guidelines for its implementation.
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Martial law and the Supreme Court
Description: Extension of military rule to civilian populations during times of war and other emergencies.
Significance: Martial law permits the military to conduct war and other military actions largely free from the constraints of the U.S. Constitution. The Supreme Court has ruled that martial law is permissible but insists on certain limits on its use.
Under martial law, military officials have the authority to take actions that suspend some or all civil liberties and would normally be unconstitutional. The justification for martial law lies in the fundamental concept of self-defense. When survival is threatened, people’s first obligation must be self-preservation, not the Constitution. Although no specific provision in the Constitution authorizes martial law, the Supreme Court has found that the concept is an implicit part of the constitutional order. Some evidence for this position comes from Article I, section 7, which provides for the suspension of the writ of habeas corpus in certain limited circumstances. In part because martial law is not plainly set forth in the Constitution, there is much uncertainty about what the term means, about what actions may be taken during martial law, and about whether such actions are entrusted to Congress or the president.
The Court has considered the constitutionality of martial law on a few occasions. During the Civil War (1861-1865), President Abraham Lincoln suspended the writ of habeas corpus and ordered the military to arrest and try civilians. Chief Justice Roger Brooke Taney, sitting as a circuit judge in Baltimore, Maryland, was subsequently presented with a claim by John Merryman that he was being held illegally by Lincoln’s army. In Ex parte Merryman (1861), Taney concluded that Lincoln’s suspension of the writ was illegal. Lincoln never formally responded to the charge, but he continued to issue orders suspending the writ. In Ex parte Vallandigham (1864), though, the Supreme Court effectively upheld the military’s decision to arrest and try Clement Vallandigham, who then applied to the Court for a writ of habeas corpus. The Court concluded that it did not have the authority to issue the writ to military authorities, thus leaving undisturbed the system of martial law Lincoln had imposed.
After the end of the Civil War, the Court was presented with another opportunity to consider the constitutionality of martial law. In Ex parte Milligan (1866), the Court found that President Lincoln violated the Constitution when he decided to suspend the writ of habeas corpus in the state of Indiana. Writing for the Court, Justice David Davis concluded that the Constitution is a law “for rulers…equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” Nevertheless, Davis concluded that the Constitution permitted martial law when war prevailed, and closure of the civilian courts made it impossible to administer justice.
The Court also considered the constitutionality of martial law during World War II. In 1941, immediately after the attack on Pearl Harbor, the governor of Hawaii declared martial law, an action ratified by President Franklin D. Roosevelt two days later. In Duncan v. Kahanamoku (1946), the Court considered a challenge to that order by two civilians who had been convicted by military courts even though the civilian courts were open. In his opinion for the Court, Justice Hugo L. Black wrote that “our system of government clearly is the antithesis of total military rule.” Citing Milligan, Black concluded that the convictions should be overturned because the conditions specified in Milligan had not been satisfied. Duncan, like Milligan, speaks of the permissibility of martial law and its limits. In both cases, however, the Court issued opinions only after hostilities were over.
According to a 2020 publication by the Brennan Center for Justice, the Supreme Court’s rulings on martial law at the federal level are limited and complicated. Because state martial law is more clearly outlined, federal courts are likely to defer to individual states for such decisions.
Bibliography
Corwin, Edward S. Total War and the Constitution. Alfred A. Knopf, 1947.
Fairman, Charles. The Law of Martial Rule. 2nd ed. U of Chicago P, 1940.
Killam, E. W. "Martial Law in Times of Civil Disorder." U.S. Department of Justice, Law and Order, vol. 37, no. 9, 1989, pp. 44-47. www.ojp.gov/ncjrs/virtual-library/abstracts/martial-law-times-civil-disorder. Accessed 8 Apr. 2023.
Neeley, Mark E. The Fate of Liberty: Abraham Lincoln and Civil Liberties. Barnes & Noble, 2007.
Nunn, Joseph. “Martial Law in the United States: Its Meaning, Its History, and Why the President Can’t Declare It.” Brennan Center for Justice, 20 Aug. 2020, www.brennancenter.org/our-work/research-reports/martial-law-united-states-its-meaning-its-history-and-why-president-cant. Accessed 8 Apr. 2023.
Rankin, Robert. When Civil Law Fails. Duke UP, 1939.
Rossiter, Clinton, and William J. Quirk. Constitutional Dictatorship: Crisis Government in the Modern Democracies. Routledge, 2017.