Martial Law - Its Form and Reach

Martial Law!

Those two words cause hearts to skip beats. Understood by those words is that, when such a form of control is instituted, personal liberties may be at risk.

There have been a few articles, referencing martial law, recently in the press. I’ve heard support for and against it, with the no-votes coming from a Constitutional view point. Within the Constitution, there is reference to at least one aspect of it, but it’s not something to which I gave much thought. It seemed to me that, if the document establishing authority in most of its forms is set aside, then the authority attempting to do so is automatically whisked out of existence. The thought being, “How can the authority exist if its source is removed? Can an authority survive after cutting free of its roots?”

 

Just where does the Constitution provide for the suspension of its declared liberties?

Under Article 1, Section 9 states, we find the following: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”  Habeas Corpus is a legal device that says a person can not be held without a valid reason. A “Writ” of Habeas Corpus is issued from a court (on behalf of a requesting citizen) to a governmental organ to demand the causes for a citizen’s incarceration, with the understanding that the court has final say over said incarceration. Article 1, Section 9 allows for a suspension of that protection, but under narrowly defined rules. There must exist a state of “Rebellion or Invasion”.

The Civil War is argued to be a rebellion, as opposed to secession. President Lincoln declared a state of martial law on September 15, 1863. He claimed a Congressionally-authorized power to impose martial law. His reasoning for the need of it, in the form a Habeas Corpus suspension, was to effectively deal with prisoners of war, spies, aiders and abettors of the enemy and draft dodgers. The act was challenged by a man named Lambden Milligan, who was arrested on October 5, 1864, for being a Confederate sympathizer. He was convicted and sentenced to hang. In an effort to save his own life, Mr. Milligan appealed to the courts in May of 1865, in a case titled ex Parte Milligan.

Milligan petitioned the Supreme Court. He claimed that his arrest and everything following it were unconstitutional, and he sought a Writ. The Court agreed with him, and said, “Martial law destroys every guarantee of the Constitution.”  It also said,  “Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish.”

Further, the Court also wrote, The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course, and, on the return made to it, the court decides whether the party applying is denied the right of proceeding any further with it.” So the Writ can be issued regardless of circumstance and, upon review, the Court decides if the suspension, in that case, is warranted. There is, then, an appeal available as a right to each citizen. So long as there is a court….

One last quote from the opinion mentions martial law. “So sensitive were our Revolutionary fathers on this subject, although Boston was almost in a state of siege, when General Gage issued his proclamation of martial law, they spoke of it as an “attempt to supersede the course of the common law, and, instead thereof, to publish and order the use of martial law.” The Virginia Assembly also denounced a similar measure on the part of Governor Dunmore as an assumed power which the king himself cannot exercise, because it annuls the law of the land and introduces the most execrable of all systems, martial law.”

“In some parts of the country, during the war of 1812, our officers made arbitrary arrests and, by military tribunals, tried citizens who were not in the military service. These arrests and trials, when brought to the notice of the courts, were uniformly condemned as illegal.”

Martial law as we understand it, can only exist when the courts themselves are out of operation. “Law” must be in order, or there will be no order at all. Chaos ensues. Martial law steps in where invasion or rebellion have so affected the region that the courts can no longer operate, and the recourse of citizens to the law has been destroyed. The martial forces then accept responsibility for restoring order among the civilian population, whose representatives arguably retain authority over those very forces. The forces serve as a tool for the people to maintain law within the region for the purposes of maintaining liberties. They are not granted “god” powers.

 

The Fourth Amendment

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

“Secure in their persons…” At the basic level, your home and possessions are meaningless if you yourself are taken away. Your right to be secure, wherever you are, in yourself, is mad clear here. In order for the government to set this aside, it needs a sworn warrant, except for temporary and limited times subject to a Writ of Habeas Corpus.

As far as I know, there is no mechanism for suspending this amendment aside from repealing or further amending it via yet another amendment.

 

Presidential Power

As the “Commander in Chief”, the President has great authority over our armed forces. Does that power extend to the general population? The Constitution under Article 2, Section 2 states, “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.” It does not extend his authority beyond that reach. His power over them is also limited to legal restrictions, beginning with the Constitution, which allows for no restriction of liberty beyond suspension of the Writ during Rebellion and Invasion.

I can see no way for “Martial Law” to exist legally beyond what is discussed here. Anyone going along with it needs to show Constitutional permission. Any court allowances for it also need to reference Constitutional permissions, as precedent and the actions of foreign courts, along with special allowances based on expediency are not law. Ultimately, the US Constitution stands as the supreme law of the land, is written in stone, and stands to protect us from the whimsical demands of regularly changing administrations. While the members of the 3 branches of government come and go, We the People, and the Constitution, remain… and we remain the reason for the existence of the Republic, the Constitution itself and the service that our governmental employees must render to us.

4 comments to Martial Law – Its Form and Reach

  • Very well put. And it all boils down to the People. If they insist and ensure that the elements of the Constituion are followed, then martial law will not occur.

    I guess I have a different view of the Constitution. I don’t believe it guarantees anything. It enumerates those things that a free people do. The People must see to it, by the vote and other ways, that the Constitution is followed by all elected officials, and everyone else in the country.

    The guarantee comes from the People themselves, living a free life following the guidelines in the Constitution.

    Just my opinion.

    • Anonymous

      Great points by both of you. Because as we see, our own legislation is failing to uphold the constitution. We should have never allowed the Patriot Actnto pass or the NDAA because it makes no sense that any person would lose his right to a fair trial. That’s just duh 101. Thank you for posting this article because it always helps me when I see the statutes that way I can share them more efficiently with others!

  • M

    Than you posting this article. Everyone should have access to a people’s court and not just a secret court. I think your article hits a subject that many. Eed to study and raise more questions. Our legislators should never have passed laws that interfere with anyone’s constitutional rights. And they have allowed illegal laws to pass such as Patriot Act 1 and 2 along with the national NDAA.

    • L P

      You’re welcome. I think it is good practice to take a concept down to its basics, and then to consult expert opinion by the creators of the concept, and those that adhere to it. In this case, there is a lot of material from which to pull. The trap is in looking to current materials for a concept that is over 200 years old. Layer upon layer of detritus from the courts “establishes” problematic practices. Original Intent is not something we can ignore or alter, without going through the Amendment process. The Writ is our protection, and we must not forget about it, or it power and meaning.

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