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A PRIMER ON “MARTIAL
LAW”

By Dr. Edwin Vieira, Jr., Ph.D.,
J.D.
August 31, 2009

NewsWithViews.com

It is
difficult these days not to come upon some pessimistic patriotic
commentator expressing the fear that something called “martial law” may
soon be imposed on this country, as the General Government’s response to a
new “terrorist attack”, or to the economic and social chaos arising out of
a collapse of the monetary and banking systems, or to some other dire
event that frightens hapless Americans into trading a sure and certain
loss of their liberties for a dollop of conjectural safety.

An
optimistic patriot might scoff at such fears. But both pessimists and
optimists typically share the same implicit first premise: namely, that
the form of “martial law” they have in mind is legitimate. Most of the
time, this is a rather glaring and dangerous error.

In legal
analysis, definitions of terms make all the difference. And “martial law”
can be defined in at least four ways:

·First, the
term could denote the law that Congress may enact for governance of the
Armed Forces and “the Militia of the several States”. This kind of
“martial law” is plainly legitimate, because the Constitution delegates to
Congress the powers “[t]o make Rules for the Government and Regulation of
the land and naval Forces” and “[t]o provide * * * for governing such Part
of the[ Militia of the several States] as may be employed in the Service
of the United States, reserving to the States, respectively, the
Appointment of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress”. [U.S. Const. art. I,
§ 8, cls. 14 and 16.] With respect to “the land and naval Forces” such
“martial law” applies at all times. With respect to the Militia, it
applies only when the latter have been “call[ed] forth * * * to execute
the Laws of the Union, suppress Insurrections and repel Invasions”. [U.S.
Const. art. I, § 8, cl. 15.] With respect to everyone else,
though, it applies not at all. This absolute separation the
Fifth Amendment confirms: “No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War or public
danger”. “Martial law” (in this first sense), which may (but need not
necessarily) dispense with “Grand Jur[ies]”, applies only to “the land and
naval forces” and to the Militia in time of “War” (“repel[ling]
Invasions”) or “public danger” (“execut[ing] the Laws of the Union” and
“suppress[ing] Insurrections”), and to no one else.

It would
be clearer, though, not to describe these matters as involving “martial
law, but instead to refer to them with particularity (as the Constitution
does) as, say, “rules for the government and regulation of the land and
naval forces” and “rules for governing part of the Militia under certain
conditions”. Then their application only to individuals in the Armed
Forces (at all times and everywhere) and in the Militia (when “call[ed]
forth” for the three constitutional purposes)—and their
inapplicability to anyone else at any time, anywhere, for any
reason—would immediately and always be beyond
cavil.

·Second,
the term “martial law” may denote the direct control of civilians by
military personnel operating in those territories where civilians are
present, but no effective (or even any) civilian government exists. For
example, during a war, in the front lines and rear echelons, as well as in
places in the immediate vicinity where no actual fighting with the enemy
may be going on, but the civilian authorities have been destroyed or
driven out as a consequence of previous fighting. Or, after some huge
natural disaster, mammoth industrial accident, or “terrorists’ strike”,
across a wide area in which every important civilian administration has
been rendered inoperative. The justification for “martial law” in these
cases is that, if the enforcement of civilian law is well-nigh impossible,
some other form of order must be set up for the benefit of the civilians
themselves who cannot be evacuated. To be sure, in a zone of military
operations, crimes such as espionage, sabotage, banditry, looting, and
otherwise terrorizing civilians have to be detected, tried, and punished
as quickly as possible. But in the case of many (and probably most) other
crimes, civilian suspects could simply be arrested and be held for later
trial in civilian courts, under civilian law. And military personnel could
perform the essentially “police” functions of detection, apprehension, and
detention in keeping with the procedures and safeguards of civilian law,
too.

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·Third, the
term “martial law” may denote outright military control of some area in
which military personnel simply suppress the local civilian authorities
and dictate to civilians under the threat of main force. Whether or not
the military personnel are following some specific “code of military law”,
“martial law” in this sense purports to set aside the Constitution and all
of the other “Laws of the Union” and to substitute therefore the orders of
officers in the Armed Forces. And any civilian who violates these
orders—even if he is acting pursuant to the Constitution and other “Laws
of the Union”—may be punished, perhaps unto death itself. Although many
Americans might acquiesce in “martial law” of this variety if it were the
only available and unavoidable response to an actual natural disaster,
economic crisis, or other political or social upheaval of severe
magnitude, many other Americans fear that public officials bent on
usurpation and tyranny, on the pretext of some phony “emergency” that they
themselves have created, will deploy the Armed Forces, along with various
para-militarized State and local police and sheriffs’
departments, throughout the United States for the purpose, not of
protecting, but of oppressing common Americans. Obviously, neither public
officials nor officers of the Armed Forces can rationalize their
imposition of “martial law” in some geographical area by themselves
destroying, driving out, or otherwise suppressing the civilian authorities
on the claim of an “emergency” that does not really exist. Once “martial
law” has been imposed, however, a real “emergency” will exist—not least of
all in the inability of civilian authorities and local residents to resist
the oppressive forces occupying their territory. So “martial law” in this
sense can amount to a self-fulfilling prophecy: Aspiring usurpers and
tyrants in public office claim that an “emergency” exists. They declare
“martial law” and deploy troops and para-militarized police
forces. The imposition of “martial law” creates a real “emergency” of
which average Americans have had no experience and for which they are
totally unprepared. The resulting destruction of popular self-government
rationalizes the maintenance of “martial law”.

The
question, though, remains: Is “martial law” of this third variety legal in
America? The answer demands painstaking analysis of the Constitution,
which requires putting one’s self in the position of Americans in the late
1700s so as to understand what they understood. At that time, William
Blackstone’s Commentaries on the Laws of England was the most
satisfactory exposition of the law available to Americans. “[M]ore copies
of the work had been sold in this country than in England, so * * *
undoubtedly the framers of the Constitution were familiar with it.”
[Schick v. United States, 195 U.S. 65, 69 (1904).] Blackstone was highly
critical and deeply suspicious of “martial law”:

WHEN
the nation [i.e., England] was engaged in war, more veteran troops and
more regular discipline were esteemed to be necessary, than could be
expected from a mere militia. And therefore at such times more rigorous
methods were put in use of the raising of armies and the due regulation
and discipline of the soldiery: which are to be looked upon only as
temporary excrescences bred out of the distemper of the state, and not
as any part of the permanent and perpetual laws of the kingdom. For
martial law, which is based upon no settled principles, but is entirely
arbitrary in it’s decisions, is * * * in truth and reality no law, but
something indulged, rather than allowed as a law: the necessity of order
and discipline in an army is the only thing which can give it
countenance; and therefore it ought not to be permitted in time of
peace, when the king’s courts are open for all persons to receive
justice according to the laws of the land. * * * And it is laid down,
that if a lieutenant, doth in time of peace hang or otherwise execute
any man by colour of martial law, this is murder; for it is against
magna carta. And the petition of right enacts * * * that no
commission shall issue to proceed within this land, according to martial
law. [American Edition (1771), Volume 1, at 412 (footnotes
omitted).]

Patriotic Americans in the
late 1700s thought no better of “martial law”. Here, the Declaration of
Independence provides compelling evidence. As the Declaration
recounted:

The
history of the present King of Great Britain is a history of repeated
injuries and usurpations, all having in direct object the establishment
of an absolute Tyranny over these States. To prove this, let Facts be
submitted to a candid world.—
* * * * *
He has affected to render
the Military independent of and superior to the Civil power.—
He has
combined with others to subject us to a jurisdiction foreign to our
constitution, and unacknowledged by our laws; giving his Assent to their
Acts of pretended Legislation:—
For quartering large bodies of armed
troops among us:—
For protecting them, by a mock Trial, from
punishment for any Murders which they should commit on the Inhabitants
of these States[.]

In this litany
of the most egregious aspects of “martial law”, the worst is that “He has
affected to render the Military independent of and superior to the Civil
power”—for , if that can be done, then all the rest (and even more) will
inevitably follow, inasmuch as no one will have any legal recourse against
whatever the executors of “martial law” may choose to
do.

No
American alive today can believe that the men who wrote the Declaration of
Independence, who acted upon it to separate the Colonies from and to
conduct a long and sanguinary war against Great Britain, and who upon the
strength of the Declaration then enacted constitutions for their States
and the United States ever imagined that the powers to behave in the
fashion of George III—powers that he had used to bring about “a long train
of abuses and usurpations, pursuing invariably the same Object [that]
evince[d] a design to reduce [Americans] under absolute Despotism”; and
powers the very use of which justified the invocation and exercise of
“the[ people’s] right, * * * their duty, to throw off such Government, and
to provide new Guards for their future security”—were among the “just
powers” that “Governments * * * instituted among Men, deriv[e] * * * from
the consent of the governed”. And no American alive today can believe that
WE THE PEOPLE in that era authorized the States and then the United States
in their constitutions to do what the Declaration of Independence had just
condemned as “abuses”, “injuries[,] and usurpations” aiming at nothing
less than “absolute Despotism” and “absolute Tyranny”.
Moreover, what Americans believed and incorporated into their
fundamental law then retains operative force today. For if the Declaration
of Independence did not state the necessary and sufficient legal
principles upon which the Colonies became independent States, then
everything the States and their people did thereafter is devoid of legal
basis.

Perusal
of the Constitution easily proves the illegitimacy of “martial law” in the
third sense. “Martial law” of this type purports to set aside or suspend
the Constitution and potentially all other “Laws of the Union”, upon the
mere say-so of military officers (or of rogue civilian public officials
colluding with military officers). Thus, “martial law” proceeds on the
premise that it is the “supreme law” in this country.
The Constitution, however, declares that “[t]his Constitution, and the
Laws of the United States which shall be made in Pursuance thereof; and
all Treaties made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land”. [Article VI, cl. 2.]
And all public officials, including officers of the Armed Forces, “shall
be bound by Oath or Affirmation, to support this Constitution”. [Article
VI, cl. 3.] So, unless “martial law” is authorized by the
Constitution itself, or by some constitutional “Laws of the United States”
or constitutional “Treaties”, precisely to set aside or suspend the
Constitution, then no public official, and no officer of the Armed Forces,
can invoke, enforce, or act under color of it without thereby violating
his “Oath or Affirmation” of office.

Even if
“martial law” (in this third sense) were itself a “Law[ ] of the United
States”, it could not set aside or suspend the Constitution of its own
force, because no mere “Law[ ] of the United States” can have that effect.
Any such purported “Law[ ]” would not be “in Pursuance [of the
Constitution]” but in derogation and destruction of it. [See, e.g.,
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-180 (1803); Miranda v.
Arizona,384 U.S. 436, 491 (1966); United States v. Brignoni-Ponce, 422
U.S. 873, 877-878 (1975).] The same would be true were “martial law”
purportedly allowed under one or more “Treaties”. For no “Treaties” can
set aside or suspend the Constitution, either. [See, e.g., United States
v. Wong Kim Ark, 169 U.S. 649, 701 (1898); Doe v. Braden, 57 U.S. (16
Howard) 635, 657 (1863); The Cherokee Tobacco, 78 U.S. (11 Wallace) 616,
620-621 (1871); Holden v. Joy, 84 U.S. (17 Wallace) 211, 243 (1872);
Geofroy v. Riggs, 133 U.S. 258, 267 (1890); Asakura v. City of Seattle,
265 U.S. 332, 341 (1924); United States v. Minnesota, 270 U.S. 181, 208
(1926); Reid v. Covert, 354 U.S. 1, 16-18 (1957) (Black, J., announcing
the judgment of the Court).] Therefore, unless within the Constitution
itself lurks some power to set aside or suspend it, with no guarantee of
its ever being reestablished, “martial law” is utterly impossible, as a
direct contradiction of the Constitution’s legal supremacy. And no such
power exists. For example—

(i)
Congress cannot authorize “martial law” by dint of any of its express
powers, because no such express power can be found in the Constitution.
Congress cannot do it by dint of an implied power, either. For, although
Congress does have the power “[t]o make all Laws which shall be necessary
and proper for carrying into Execution” its enumerated powers [Article I,
§ 8, cl. 18], none of its enumerated powers relates to “martial law”—and
therefore no implied power can be exercised in relation to that subject.
In any event, Congress can enact only “Laws” pursuant to both its express
and its implied powers; and no mere “Law[ ]” can override the
Constitution.

(ii)
Neither can the President authorize “martial law”. Although the President
is “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” [Article II, § 2, cl. 1], in that capacity or any other
he has no authority to make any “Laws of the United States”, or to set
aside or suspend any of the “Laws” then in existence (unless perhaps those
“Laws” themselves so provide). Rather, his constitutional duty is to “take
Care that the Laws be faithfully executed” [Article II, § 3]. So, if no
“Law[ ]” allowing “martial law” exists, the duty to “take Care that the
Laws be faithfully executed” requires the President to refrain from any
involvement whatsoever with “martial law”, except to prevent anyone else
from attempting to impose it.

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(iii)
The President enjoys no greater power to impose “martial law” by combining
with the Senate “to make Treaties” [Article II, § 2, cl. 2]. For, as noted
above, “Treaties” cannot set aside or suspend the Constitution.

(iv) The
Constitution does allow for “[t]he Privilege of the Writ of Habeas Corpus
* * * [to] be suspended, * * * when in Cases of Rebellion or Invasion the
public Safety may require it” [Article I, § 9, cl. 2]. But this does not
amount to a power to invoke or execute “martial law”, because suspension
of the writ has no necessary connection with “martial law”, howsoever
defined. Suspension of the writ addresses merely one part of the civilian
law, licensing civilian authorities to hold a suspect without bail,
pending his trial. Although that part of the civilian law is temporarily
suspended, no form of military law is, or need be, thereby substituted for
it. Indeed, the Armed Forces play no part in the process at all.
Importantly, the conditions precedent for suspension of the
writ—i.e., “Rebellion or Invasion” sufficient to endanger “the
public Safety”—involve situations which advocates of “martial law” claim
justify it. Yet, even under in those situations, the Constitution does not
suggest the propriety of, let alone call for, “martial law”, suspension of
the writ alone being deemed sufficient to protect “the public
Safety”.

(v) The
Constitution mandates that “[t]he United States shall guarantee to every
State in this Union a Republican Form of Government” [Article IV, § 4]. By
definition, “martial law” is not “a Republican Form of Government”. For
the “definition of * * * a [republican] government is—one constructed on
this principle, that the supreme power resides in the body of the people”.
[Chisholm v. Georgia, 2 U.S. (2 Dallas) 419, 457 (1793) (Wilson, J.)] And
“martial law” derives its powers purely and simply from military force,
not from the people. For that very reason, “martial law” is not
any form of “Government[ ]” that “deriv[es its] just powers from
the consent of the governed”—the only form of “Government[ ]” which the
Declaration of Independence allows in America. Thus, perforce of this
constitutional provision alone, “martial law” cannot be imposed by the
United States on any State. And if any State attempts to set up “martial
law” on her own, the United States must put it down forthwith.

(vi)
Inasmuch as the United States cannot impose the third variety of “martial
law” in any State, and no State can impose such “martial law” within her
own territory, where in America could “martial law” ever exist? Not even
in the District of Columbia and in “all Places purchased by the Consent of
the Legislature of the State in which the Same shall be”, over which
“Places” the Constitution empowers Congress “[t]o exercise exclusive
Legislation in all Cases whatsoever” [Article I, § 8, cl. 17]. For, even
in those “Places”, Congress may not enact arbitrary legislation.
As Blackstone pointed out, “martial law, which is based upon no
settled principles, but is entirely arbitrary in it’s decisions, is *
* * in truth and reality no law, but something indulged, rather than
allowed as a law”. The very essence of “martial law” is
vagueness, because no one can predict what orders military
officers may pronounce on the spur of the moment, or how they may
interpret or enforce them. Indeed, this very “flexibility” of “martial
law” its advocates typically commend most highly. “[A] statute which
either forbids or requires the doing of an act in terms so vague that men
of common intelligence must necessarily guess at its meaning and differ as
to its application”, however, “violates the first essential of due process
of law”. [Connally v. General Construction Company, 269 U.S. 385, 391
(1926).] So, even if “martial law” were explicitly enacted into some
supposed statute, it would “violate[ ] the first essential of due process
of law”, and therefore be unconstitutional—hardly a surprising result,
though, given that “martial law * * * is * * * in truth and reality no
law” at all.

(vii)
The essence of “martial law” in this third sense may be vague, but its
constitutional effect is pellucid: Any attempt to impose “martial law” by
force is nothing less than “Treason”. The Constitution declares that
“Treason against the United States, shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and
Comfort” [Article III, § 3, cl. 1]. And “if [‘War’] be actually levied,
that is, if a body of men be actually assembled, for the purpose of
effecting by force a treasonable purpose, all those who perform any part,
however minute, or however remote from the scene of action, and who are
actually leagued in the general conspiracy, are to be considered as
traitors”. [Ex parte Bollman, 8 U.S. (4 Cranch) 75, 126
(1807).] In operation, “martial law” proceeds by arraying men under arms
in order to set aside or suspend the Constitution of the United States, in
whole or in part, and to employ those arms against anyone who
resists—without any constitutional or other lawful authority for doing
so. Therefore, inasmuch as “the United States” exists only perforce
and through application of the Constitution, “martial law” amounts to
“levying War against the[ United States]”. And inasmuch as WE THE PEOPLE
are the authors and beneficiaries of the Constitution, “martial law”
amounts as well to “levying War against” THE PEOPLE themselves. It would
be immaterial that those who attempted to impose “martial law” wore
uniforms (even with United States flags as shoulder patches), or held
military commissions, or acted pursuant to orders from supposed superiors.
Even someone who commits “Treason” under a claim of “good faith” is
entitled to no immunity. This principle is part of the modern Law of
Nations: “[T]hat the [officer] acted pursuant to order of his Government
or of a superior shall not free him from responsibility”. [Charter of the
International Military Tribunal (Nuremberg, Germany, 1945), art. 8.] And
it subsists in American law of a far longer heritage. [E.g., Mitchell v.
Harmony, 54 U.S. (13 Howard) 115, 137 (1851).]

In sum,
“martial law” in the third sense of that term cannot exist in this
country. It is a legal impossibility. Participation in it would constitute
the most serious of all crimes. And it would supply just grounds for mass
resistance among the citizenry aimed at overthrowing whatever purported
governmental apparatus attempted to impose it. For, as the Declaration of
Independence proclaims, under such circumstances “it is the[ people’s]
right, it is their duty, to throw off such Government, and to provide new
Guards for their future security”. And the Declaration of Independence is
still very good law in America.

All that
being so, who in his right mind would ever attempt to impose such a form
of “martial law” on America? Perhaps no one. Yet Americans must
be prepared for the possibility that individuals not in their right minds
may somehow insinuate themselves into high public offices and the upper
echelons of the officer corps of the Armed Forces, and from those
points d’appui seek to transmogrify this country from a
constitutional republic into a “national-security state”, a “garrison
state”, or a “para-military police state”. It is not sufficient
to contend that, insofar as responsible people with well-balanced minds
presumably outnumber political psychopaths by many orders of magnitude,
America has nothing to fear. For that would be true only if such
right-thinking Americans were properly organized to meet the danger in the
“well regulated Militia” which the Second Amendment to the Constitution
itself tells them are “necessary to the security of a free
State”.

·Thus,
analysis arrives at the fourth definition of “martial law”—namely, when
“the Militia of the several States” are “call[ed] forth * * * to execute
the Laws of the Union, [or] suppress Insurrections” [Article I, § 8, cl.
15]. This would be “martial law” in the sense that the Militia would be
performing a “police” function in a para-military fashion,
according to their training and discipline. Nonetheless, it would be the
exact opposite of “martial law” in the third sense described above,
because, in application to civilians, the Militia would execute
civilian law (“the Laws of the Union”). Moreover, as the
Constitution plainly mandates in the generality of its language, when so
“call[ed] forth” the Militia would be required to execute all of “the Laws
of the Union”, including the Constitution and the Bill of Rights,
both substantively and procedurally.

Besides
being undoubtedly valid, because the Constitution provides for it in so
many words, this form of “martial law” would never become politically
dangerous. For unlike “martial law” of the third type, under color of
which members of the Armed Forces would be deployed to repress people they
did not know in localities in which they had never lived or worked,
“martial law” centered on the Militia would always involve in the
forefront of operations local Militiamen who could never be expected to
oppress their own families, friends, neighbors, and co-workers. Indeed, if
the territory being policed contained civilians, and least some of them
would be members of the Militia—and therefore to a large extent the
Militia would be policing themselves.

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Unfortunately, “[a] well
regulated Militia” of the constitutional pattern does not exist in a
single State today. And none will exist until enough Americans who want
this country to avoid having to relive the perilous circumstances that
justified the Declaration of Independence come forward to correct this
deficiency.

© 2009 Edwin Vieira, Jr. - All
Rights Reserved

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Edwin Vieira, Jr., holds four degrees from
Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School
of Arts and Sciences), and J.D. (Harvard Law School).

For more than thirty years he has
practiced law, with emphasis on constitutional issues. In the Supreme
Court of the United States he successfully argued or briefed the cases
leading to the landmark decisions Abood v. Detroit Board of Education,
Chicago Teachers Union v. Hudson, and Communications Workers of America v.
Beck, which established constitutional and statutory limitations on the
uses to which labor unions, in both the private and the public sectors,
may apply fees extracted from nonunion workers as a condition of their
employment.

He has written numerous monographs and
articles in scholarly journals, and lectured throughout the county. His
most recent work on money and banking is the two-volume Pieces of Eight: The Monetary
Powers and Disabilities of the United States Constitution (2002), the most
comprehensive study in existence of American monetary law and history
viewed from a constitutional perspective. http://www.piecesofeight.us/

He is also the co-author (under a nom
de plume) of the political novel CRA$HMAKER: A Federal Affaire
(2000), a not-so-fictional story of an engineered crash of the Federal
Reserve System, and the political upheaval it causes. http://www.crashmaker.com/

His latest book is: "How To
Dethrone the Imperial Judiciary" ... and Constitutional
"Homeland Security," Volume One, The Nation in Arms...

He can be reached at his new
address:
52 Stonegate Court
Front Royal, VA 22630.

E-Mail: Not available

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Then,
with the Power of the Purse and the Power of the Sword firmly held in We
the People’s hands, in jurisdictions with constitutional authority, other
problems can be addressed, one after another, from a position of
ever-increasing political, economic, and legal strength.