History of Martial Law in United States

In the United Union, Martial Law “has been imposed mostly by state governments. The federal government expressly declared a state of martial law only during the American Civil War and in Hawaii during World War II; however, federal forces have been used in other instances to enforce law or suppress disorder without an express declaration of martial law having been made. The phrase martial law is not used in the U.S. Constitution; however, authority for the federal government to impose martial law has been found inferentially in the four following constitutional provisions: Article I, Section 9, which reads, “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”; Article IV, Section 4, which provides, in part, that “The United States … shall protect each … [state] on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence”; Article II, Section 3, which requires, in part, that the president “… take care that the laws be faithfully executed”; and Article I, Section 8, which provides Congress with the power “To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.”

In the Civil War Abraham Lincoln suspended the privilege of the writ of habeas corpus by executive action before receiving authorization by a statute enacted early in 1863. By the consensus of present-day authority, federal suspension of the privilege of the writ requires congressional authorization. Because the military may detain suspects when necessary to the public safety, however, formal suspension of the privilege of the writ is of little importance.

Trials of civilians by federal military commissions during the Civil War were held invalid by the Supreme Court in the celebrated case of Ex parte Milligan, decided in 1866. The case involved the arrest and trial in 1864 of the American civilian-pacifist Lambdin Milligan by a military commission in Indiana, which was not a theater of military operations and in which the courts were open and functioning. The court held that “…martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion must be real, such as effectively closes the courts and deposes the civil administration…. Martial rule can never exist when the courts are open and in the proper and unobstructed exercise of their jurisdiction….” The Court also held that the president may not institute trial by military commission, even in times of rebellion and civil war, in the absence of congressional legislation. Some trials of civilians in state military courts were sustained on the authority of Moyer v. Peabody, but the Hawaiian Organic Act, under which a valid state of federal martial law was declared in Hawaii during World War II, was held by the Supreme Court not to include the power to try civilians by military courts. Accordingly, the Court set aside such wartime trials in Hawaii.

In several instances the president has intervened in states to execute federal laws despite the objections of the governor of the state. Thus, President Grover Cleveland sent troops to Illinois over the objection of Governor John Altgeld to keep the mails moving in the Pullman and railroad strike in 1895. In 1957 President Dwight D. Eisenhower, despite the protest of Governor Orval Faubus, sent federal troops to Little Rock, Arkansas, to enforce the order of a federal court that blacks be admitted to a high school formerly reserved for white students. Federal troops have been utilized to restore order in several instances when requested by a state, for example, in Colorado during the 1954 mine strikes.”

Main Source: “Martial Law,” Microsoft® Encarta® Online Encyclopedia 2000