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.
Two theories of martial law are reflected in decisions of the Supreme Court. The first, which stems from the Petition of Right, 1628, provides that the common law knows no such thing as martial law;1 that is to say, martial law is not established by official authority of any sort, but arises from the nature of things, being the law of paramount necessity, leaving the civil courts to be the final judges of necessity.2 By the second theory, martial law can be validly and constitutionally established by supreme political authority in wartime. In the early years of the Supreme Court, the American judiciary embraced the latter theory as it held in Luther v. Borden3 that state declarations of martial law were conclusive and therefore not subject to judicial review.4 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. The decision in the Prize Cases,5 although not dealing directly with the subject of martial law, gave national scope to the same general principle in 1863.
The Civil War being safely over, however, a divided Court, in the elaborately argued Milligan case,6 reverting to the older doctrine, pronounced President Lincoln’s action void, following his suspension of the writ of habeas corpus in September, 1863, in ordering the trial by military commission of persons held in custody as
abettors of the enemy. 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.7 Four Justices, speaking by Chief Justice 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 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.8 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 20th century, however, the Court appeared to retreat from its stand in Milligan insofar as it held in Moyer v. Peabody9 that
the 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.10 The
good faith test of Moyer, however, was superseded by the
direct relation test of Sterling v. Constantin,11 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.12
Martial Law in Hawaii
The question of the constitutional status of martial law was raised again in World War II by the proclamation of Governor Poindexter of Hawaii, on December 7, 1941, suspending the writ of habeas corpus and conferring on the local commanding General of the Army all his own powers as governor and also
all of the powers normally exercised by the judicial officers . . . of this territory . . . during the present emergency and until the danger of invasion is removed. Two days later the Governor’s action was approved by President Roosevelt. The regime which the proclamation set up continued with certain abatements until October 24, 1944.
By section 67 of the Organic Act of April 30, 1900,13 the Territorial Governor was authorized
in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, [to] suspend the privilege of the writ of habeas corpus, or place the Territory, or any part thereof, under martial law until communication can be had with the President and his decision thereon made known. By section 5 of the Organic Act,
the Constitution . . . shall have the same force and effect within the said Territory as elsewhere in the United States. In a brace of cases which reached it in February 1945, but which it contrived to postpone deciding till February 1946,14 the Court, speaking by Justice Black, held that the term
martial law as employed in the Organic Act,
while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals.15
The Court relied on the majority opinion in Ex parte Milligan. Chief Justice Stone concurred in the result.
I assume also, he said,
that there could be circumstances in which the public safety requires, and the Constitution permits, substitution of trials by military tribunals for trials in the civil courts,16 but added that the military authorities themselves had failed to show justifying facts in this instance. Justice Burton, speaking for himself and Justice Frankfurter, dissented. He stressed the importance of Hawaii as a military outpost and its constant exposure to the danger of fresh invasion. He warned that
courts must guard themselves with special care against judging past military action too closely by the inapplicable standards of judicial, or even military, hindsight.17
Martial Law and Domestic Disorder
President Washington himself took command of state militia called into federal service to quell the Whiskey Rebellion, but there were not too many occasions subsequently in which federal troops or state militia called into federal service were required.18 Since World War II, however, the President, by virtue of his own powers and the authority vested in him by Congress,19 has used federal troops on a number of occasions, five of them involving resistance to desegregation decrees in the South.20 In 1957, Governor Faubus employed the Arkansas National Guard to resist court-ordered desegregation in Little Rock, and President Eisenhower dispatched federal soldiers and brought the Guard under federal authority.21 In 1962, President Kennedy dispatched federal troops to Oxford, Mississippi, when federal marshals were unable to control with rioting that broke out upon the admission of an African American student to the University of Mississippi.22 In June and September of 1964, President Johnson sent troops into Alabama to enforce court decrees opening schools to black students.23 And, in 1965, the President used federal troops and federalized local Guardsmen to protect participants in a civil rights march. The President justified his action on the ground that there was a substantial likelihood of domestic violence because state authorities were refusing to protect the marchers.24