The history of martial law in our states has been mixed with numerous abuses and excesses. In a case involving a conflict between coal miners and mine owners, Justice Oliver Wendell Holmes wrote that a governor may seize “the bodies of those whom he considers to stand in the way of restoring peace.” The courts generally have not intruded on the exercise of such extraordinary powers while emergencies persisted, but the courts have insisted that they end when an emergency is over. Governors have declared martial law in response to all manner of domestic disturbances, ranging from strikes to riots to disputes over oil production. Wicked men, ambitious of power with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln.” If this right to suspend the provisions of the Constitution during the great exigencies of government “is conceded and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate.”ĭespite this language, the court allowed detention of the citizen who brought the petition. The country “has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. In a case growing out of the Civil War, the Supreme Court justices used soaring language, pointing out that the framers “foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril, unless established by irreparable law.” Moreover, President Roosevelt ordered the confinement of more than 100,000 Americans of Japanese descent after Pearl Harbor and martial law was declared in the territory of Hawaii. President Lincoln suspended habeas corpus during the rebellion we call the Civil War.
Even the wartime precedents speak with different voices.
There are no direct precedents for such an action when our nation is in peacetime. What then would the courts do if the president were to declare martial law and have the military detain protesters? The answer here is clear. The courts must remain open even during dire emergencies. The closest the Constitution comes to regulating these powers is in a prohibition against suspending the writ of habeas corpus “unless when in cases of rebellion or invasion the public safety may require it.” We are definitely not experiencing an invasion, nor do the current disturbances, violent as some but not others have been, qualify as a rebellion.Īccordingly, even if President Trump were to try to invoke martial law or emergency powers, claiming that they are inherent with his authority as commander in chief of the armed forces, the courts would have the last word, because citizens detained without due process would be able to secure judicial review by means of the “great writ” of habeas corpus. President Kennedy federalized the National Guard to force integration of the University of Alabama in 1962, also over state objections. However, President Eisenhower sent the 101st Airborne Division to Little Rock against the wishes of Arkansas to enforce high school integration in 1957. California requested and received federal troops during the Los Angeles riots in 1992.
He had the blessing of the states and cities in both cases. In more recent history, for instance, President Johnson deployed federal troops to Detroit in 1967 during a riot and once more to Chicago amid violence during the Democratic convention in 1968. That silence, however, has not stopped presidents from exercising such powers, generally upon the request and with the cooperation of states. Martial law and emergency powers were not actually uncommon at the founding of the nation, and several state constitutions provided for them in cases of emergency. The Constitution, quite surprisingly, is silent on the issue of martial law and emergency powers.
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