Martial Law

MARTIAL LAW

MARTIAL LAW is most easily defined as the application of military force to control all or part of an area where civilian authority is ineffective or in defiance of higher authority. Martial law often applies to battle theaters where army commanders require control of civilian resources close to front lines. In this vein, Andrew Jackson imposed martial law in New Orleans in 1814. More recently, martial law has been used to support civilian authorities in times of natural disaster. Americans traditionally view martial law with great suspicion because of the power it grants to the army and its commanders. The Declaration of Independence condemned George III's use of the British army to "render the military independent of, and superior to, civil power." The Constitution's guarantee of the right of habeas corpus protects U.S. citizens from potential arbitrary excesses of martial law. Only the president can declare martial law on the federal level and only governors may do so on the state level.

Despite American ideals opposing martial law, presidents have used it to deal with crises since the founding of the nation. George Washington declared martial law to quell the Whiskey Rebellion in 1794. Washington set an important American precedent by ordering the army to turn the rebels over to civil courts for trial. By not making the rebels subject to military law, Washington established the ideal that martial law should be used to bolster, not supersede, legally constituted local powers.

In order to avoid the often-unpopular step of declaring martial law, authorities have frequently called out troops without a formal declaration. Several governors used this tactic during the late nineteenth century in order to deploy local militia and guard units to quell railroad and mining strikes. These incidents raised questions about the proper chain of command for local militia, with governors seeking to maintain control of their militia without federal interference. In 1877, the governors lost the struggle when the National Guard Act made local militia subject to federalization in the event of a national emergency, as declared by the president.

On other occasions, presidents have used martial law when local authorities appeared unwilling or unable to enforce the law. During the 1950s and 1960s, Presidents Dwight Eisenhower, John Kennedy, and Lyndon Johnson used federal troops or federalized National Guard troops to enforce civil rights laws against the will of state governors, most notably at Little Rock, Arkansas, in 1957, Oxford, Mississippi, in 1962, and Selma, Alabama, in 1965. In these cases, martial law effectively negated the power of recalcitrant local authority. In cases where local authority simply breaks down or cannot control an urban disturbance or natural disaster, martial law can be used to support local law enforcement.

Nevertheless, American suspicion of concentrated power has meant that martial law has only been declared thirty times, usually in localized areas and for brief time periods. Furthermore, the Supreme Court has limited the legal scale and scope of martial law. In the 1866 case Ex Parte Milligan, the court ruled that the military may not try civilians when civil courts are still functioning. In 1932, in Sterling v. Constantin, the Supreme Court asserted the right of judicial review over martial law.

Controversial uses of the military in domestic incidents, such as General Douglas MacArthur's 1932 eviction of the Bonus Army from Washington, D.C., have undermined the public's faith in martial law except in extraordinary circumstances. Excessive uses of martial law for purely political purposes have also tarnished the legitimacy of martial law. In 1935, the governor of arizona tried unsuccessfully to impose martial law in order to stop a federal project on federal land. Two years later, the governor of Rhode Island used martial law to enforce a ban on horse racing. To American sensitivities, these incidents did not warrant the drastic step of imposing martial law, whether at the state or federal level.

The regular military has normally been reluctant to participate in martial law situations. The army has not traditionally been trained to handle domestic disturbances, and it has not historically seen itself as a national police force. Moreover, declarations of martial law sometimes carry political overtones that the army prefers to avoid, as in the declaration of martial law by Indiana's Republican governor to head off a Copperhead movement in 1862 or the struggle in the wake of riots in Detroit in 1967 between President Johnson and Governor George Romney of Michigan, a potential Republican rival for the presidency in the 1968 election.

In practice, martial law in the United States usually involves the careful blending of military and civilian authorities. U.S. military authorities rarely completely take over situations, with the civil rights era being an important exception. More commonly, the military follows the Whiskey Rebellion model of deploying to support and assist local officials. This tradition fits in with perennial American fears of standing armies and concentrated power.

BIBLIOGRAPHY

Coakley, Robert. The Role of Federal Military Forces in Domestic Disorders, 1789–1878. Washington, D.C.: Center of Military History, 1988.

Higham, Robin, ed. Bayonets in the Streets: The Use of Troops in Civil Disturbances. 2d ed. Manhattan, Kans.: Sunflower Press, 1989.

Neely, Mark, Jr. The Fate of Liberty: Abraham Lincoln and Civil Liberties. New York: Oxford University Press, 1991.

Michael S. Neiberg

See also Military Law ; Ex Parte Milligan ; National Guard .