A Republic of Emergencies: Martial Law in American Jurisprudence

42 Pages Posted: 8 Dec 2004

Abstract

A precise definition of martial law is near impossible. The United States Constitution makes no reference to martial law, nor does any state constitution provide a working definition or model to implement martial law. Current notions of martial law are a compilation of how different people have used martial law at different times. From an historical overview of martial law invocations, one can deduce that, first, martial law is a military power exercised during times of perceived crises. Second, martial law is an inward power, imposed on the citizens and in the territory of the government invoking martial law. Third, martial law seems to be a device, in intention at least, for the protection of the citizens it so drastically affects. Yet abstract definitions do not provide a coherent framework of martial law, nor instruct the courts on how to determine the legality of the exercise of that extraordinary power.

This article begins by looking to Congress and state legislatures to provide a working definition of martial law. The law-making branch of the federal government, and its state counterparts, are best positioned to determine the boundaries of martial law in the absence of constitutional provisions. Accordingly, this article addresses acts of Congress and state statutes which bestow martial law authority on the President and state governors, respectively. Although martial law legislation provides the clearest boundaries of when martial law is permissible, it fails to provide a universal model for the implementation of martial law, if such a model exists at all. Legislation is usually limited to specific circumstances, triggered by certain events, or bound by the narrow reaches of a state or territory.

The main thrust of this article evaluates the Supreme Court's review of martial law powers. The Court reviews instances of state and federal martial law in two distinct analyses. Each review reflects the different grants of power bestowed upon state and federal governments under the United States Constitution. One tests the constitutionality of state invoked martial law through the application of the Fourteenth Amendment. The other examines federal emergency measures purporting to be in accord with congressional authorization. Both attempt to harness the wayward exercise of extraordinary powers of American government; both have differing degrees of success. This article recommends a strategy to improve the Court's construction of emergency and martial law powers delegated by Congress to the Executive.

Keywords: Law, separation of powers, delegation, martial law, martial rule, emergency powers, constitutional law, military law

JEL Classification: K00, K10, K19, K30, K40

Suggested Citation

Weida, Jason Collins, A Republic of Emergencies: Martial Law in American Jurisprudence. Available at SSRN: https://ssrn.com/abstract=621342

Jason Collins Weida (Contact Author)

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860-324-2247 (Phone)

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