Martial Law Generally

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Article II, Section 2, Clause 1:

The President shall be 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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Martial law can be validly and constitutionally established by supreme political authority in wartime as held in Luther v. Borden.1 In Luther, the Court held that state declarations of martial law were conclusive and therefore not subject to judicial review.2 In this case, the Court found that the Rhode Island legislature had been within its rights in resorting to the rights and usages of war in combating insurrection in that state.3 The decision in the Prize Cases,4 although not dealing directly with the subject of martial law, gave national scope to the same general principle in 1863.

After the Civil War, a divided Court, in Ex parte Milligan,5 pronounced President Abraham Lincoln’s suspension of the writ of habeas corpus in September 1863 void. The salient passage of the Court’s opinion bearing on this point is the following:

“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 theater 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.” 6

Four Justices, speaking by Chief Justice Salmon Chase, while holding Milligan’s trial to have been void because it violated the Act of March 3, 1863, governing the custody and trial of persons who had been deprived of the habeas corpus privilege, declared their belief that Congress could have authorized Milligan’s military trial. The Chief Justice wrote:

Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as Commander in Chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions . . . .

We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists.

Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what states or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety.7

In short, only Congress can authorize the substitution of military tribunals for civil tribunals for the trial of offenses; and Congress can do so only in wartime.

Early in the twentieth century, however, the Court appeared to retreat from its stand in Milligan insofar as it held in Moyer v. Peabody8 that:

“[T]he Governor’s declaration that a state of insurrection existed is conclusive of that fact. . . . [T]he plaintiff’s position is that he has been deprived of his liberty without due process of law. But it is familiar that what is due process of law depends on circumstances. . . . So long as such arrests are made in good faith and in honest belief that they are needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief.” 9

The “good faith” test of Moyer, however, was superseded by the “direct relation” test of Sterling v. Constantin,10 where the Court made it very clear that “[i]t does not follow that every sort of action the Governor may take, no matter how justified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.” 11

1: 48 U.S. (7 How.) 1 (1849). See also Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32–33 (1827) ( “When the President exercises an authority confided to him by law, the presumption is, that it is exercised in pursuance of law.” ).
2: 48 U.S. (7 How.) at 45.
3: Id.
4: 67 U.S. (2 Bl.) 635 (1863).
5: Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
6: Id. at 127.
7: Id. at 139–40 (Chase, C.J., concurring). In Ex parte Vallandigham, 68 U.S. (1 Wall.) 243 (1864), the Court had held, while war was still flagrant, that it had no power to review by certiorari the proceedings of a military commission ordered by a general officer of the Army, commanding a military department.
8: 212 U.S. 78 (1909).
9: 212 U.S. at 83–85.
10: 287 U.S. 378, 400 (1932) (distinguishing Moyer because “[i]n that case it appeared that the action of the Governor had direct relation to the subduing of the insurrection by the temporary detention of one believed to be a participant, and the general language of the opinion must be taken in connection with the point actually decided” ). The Court stated: “The nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order, for without such liberty to make immediate decision, the power itself would be useless. Such measures, conceived in good faith, in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the Executive in the exercise of his authority to maintain peace.” Id. at 399–400.
11: Id. at 400–401. State governors have ignored this holding on numerous occasions. E.g., Allen v. Oklahoma City, 175 Okla. 421 (1935) ( “[T] he martial law decree afforded no justification whatever for the enactment of the [segregation] ordinance, nor did this instrument impart any validity to the ordinance.” ); Hearon v. Calus, 178 S.C. 381 (1935) ( “In the case now before this court [involving the governor’s takeover of the state highway commission] there is no particle of evidence, nor even suggestion, that there existed a state of war, or anything approaching disorder” ); and Joyner v. Browning, 30 F. Supp. 512 (W.D. Tenn. 1939) (enjoining governor from employing martial law to disenfranchise voters on the basis of sex and race).