A Quick Primer on “Martial Law”

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Commentary, Constitutional Structure, Limited Government

Whenever there is civil unrest or a natural disaster in some part of the United States, people on the internet invariably start to rumble that someone or another might declare “martial law.”  The thing is, the people expressing concerns about martial law rarely seem to understand the meaning of the term.  In order to help shed some light on the topic, we wanted to offer this brief primer on martial law – and an explanation as to why the Missouri Constitution expressly forbids the use of martial law in this state.

Simply put, martial law exists when military (or possibly paramilitary) authorities supplant the normal institutions and functions of government.  This is sometimes the result of a military coup, but can also be the result of an executive official handing power over to military officials. Those exercising martial law create and enforce their own rules and they are not accountable to the civilian population or their elected representatives.

Although the U.S. Constitution does not explicitly reference martial law, President Lincoln instituted martial law during the Civil War (allowing the indefinite imprisonment of citizens without charging them with a crime, creating military tribunals in place of civil courts, and appointing military governors in the former Confederate states) and President Franklin Roosevelt also imposed martial law in Hawai’i and in various parts of the West Coast during World War Two (including the creation of internment camps imprisoning more than 100,000 Japanese-Americans).  These are, thus far, the only two examples of martial law imposed by federal officials in the United States.

Immediately following the Civil War the U.S Supreme Court ruled in Ex Parte Milligan, 71 U.S. 2 (1866), that the U.S. Constitution did authorize the use of martial law, but only under very limited circumstances:

“If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.”

So, as far as the authority of the federal government is concerned, the authority to impose martial law is significantly limited.  But this only addresses one part of the equation.

Most state constitutions permit the state government to impose martial law under extraordinary circumstances, and such declarations have certainly been made. But Article I, section 24 of the Missouri Constitution expressly forbids the substitution of military or police authority for the citizens’ elected leaders, a choice that was made when the horrors of life under military rule were still fresh in Missourians’ minds after the Civil War.

To be clear, there is a significant difference between “martial law” and the governor’s activating the National Guard (or using the Highway Patrol) to assist with the enforcement of the regular laws adopted by the people’s elected authorities. A Missouri governor enjoys limited authority to do the latter, as long as the governor maintains control over the military or paramilitary forces and as long as they are only enforcing the regular laws, with alleged lawbreakers being afforded all requisite rights – including trial by jury before the state’s courts. But Missouri’s governor may not give military or paramilitary officers independent authority over any part of the state. To the extent that the Missouri General Assembly has attempted to give the governor authority to proclaim martial law, this statute directly conflicts with Article I, section 24 of the Missouri Constitution and is therefore null and void.

So to sum up, it is not “martial law” for the governor of a state to call out the National Guard to assist with the enforcement of the state’s laws. It is “martial law” when a governor effectively suspends the normal functions of civil government and gives a military or paramilitary force independent authority to create and enforce “law” of its own design.  Missouri’s governor has the power to call up the National Guard to act in the service of the state’s established laws and under the guidance of its elected officials, but a Missouri governor cannot authorize the National Guard or any law enforcement agency to ignore the established laws or displace the citizens’ elected officials.