Martial Law Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Martial law consists of transitory rule by military authorities of a designated area inhabited by civilians during periods of emergency. In theory, martial law is temporary, but a state of martial law in a jurisdiction may persist indefinitely (as observed in Egypt, which has been under martial law for several decades.) Martial law is not to be confused with military law, which is a collection of legal principles and regulations that apply only to members of the armed services. Military law coexists with civil authority and does not override it— martial law, alter natively, does suspend civil authority and constrains both civilians and the military.

Under martial law, absolute power is placed in the military commander to reinstate security and safety to an area disrupted by violence or some other serious disturbance, such as a war, natural disaster, a political or economic crisis, or a widespread riot. With martial law, the decisions of military leaders and institutions of the armed services reign supreme and supersede those of all civil courts and civil laws—routine civilian administration of justice and law is deferred until normal conditions are restored and allow the military to return authority to the regularly constituted government. Typically observed in martial law is suspension of habeas corpus (wherein a judge rules upon the validity/legality of a detention), the imposition of curfews requiring persons to be in their homes for a set period of time during the day and night, and the banning of public protests and demonstrations.

Mere utilization of military forces by a civilian government to maintain order does not constitute a system of martial law. The legal status, specific declarations, and particular manifestations of martial law differ from nation to nation and state to state, but they all generally involve the suspension of citizens’ normal civil liberties and civil rights and the placement of ordinary civilians under military law and military justice. The regularly constituted civil courts do not engage in judicial review of the decisions of military tribunals as organized during a period of martial law.

In the American context, the U.S. Constitution does not directly enumerate the authority by the federal government to proclaim martial law. The Constitution does imply this authority by granting the federal government the duty and obligation to protect the states from external invasion or internal insurrection, found in both Article I, Section 8, and Article IV, Section 4. Thus, the power to proclaim martial law rests with the U.S. Congress and the respective state legislatures. (A strong majority of state constitutions allow their governors to declare martial law within the state.) Such declarations can legally occur only during times of bona fide emergency, and martial law must terminate when the crisis has passed. Civilian government continues to exist during a period of martial law but does recede into the background until it can once again return to effective functioning.

The military’s actions need to conform to constitutional requirements in the process of maintaining order, preserving lives, and protecting property. As the U.S. Supreme Court held in the case of Ex parte Milligan (1866), military tribunals cannot try civilians for nonmilitary offenses if civil courts are still operating. Military commanders must conscientiously and properly exercise their authority to make sure individuals’ rights are not illegally trampled. If they do not, criminal charges can be brought against offending troops and their military leaders. The most famous invoking of martial law in the United States occurred in some areas in the Northern states by President Abraham Lincoln during the Civil War (1861–1865) and in several sections in the South after the war.

It is important to recognize that martial law is not the same thing as military government. Military government is essentially government run by the armed forces on a relatively permanent basis and institutionalized as such, typically operating through a small group composed of the chiefs of each of the military branches (conventionally referred to as a junta) and normally brought about by a military coup d’état. Examples of this type of government have been found in Asia, Africa, and Latin America. The power of such military regimes derives from the use or threat of force. Martial law generally presupposes a near and eventual return to civilian-led government after emergency circumstances have come and gone, while military government does not.

Bibliography:

Ex parte Milligan, 4 Wall. 2 (1866).
Hague, Rod, and Martin Harrop. Political Science: A Comparative Introduction. 5th ed. New York: Palgrave Macmillan, 2007.
Ingersoll, Edward. Personal Liberty and Martial Law. Farmington Hills, Mich.: Thomson Gale, 1969.
Posner, Eric A., and Adrian Vermeule. Terror in the Balance: Security, Liberty, and the Courts. New York: Oxford University Press, 2007.
Sullivan, Richard Joseph. Thoughts on Martial Law. Ann Arbor: University of Michigan Library, 2009.
Warshauer, Matthew. Andrew Jackson and the Politics of Martial Law: Nationalism, Civil Liberties, and Partisanship. Knoxville: University of Tennessee Press, 2006.

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