A state of war does not suspend the application of the Constitution, does not replace the functioning of civilian courts or legislative assemblies, does not authorize the transfer of jurisdiction to military courts and authorities over civilians in which civilian courts may operate, or automatically suspend the privilege of complaint. The Court`s reasoning in Milligan is strikingly contradictory and must be interpreted with caution. In part of the opinion, the Court stresses that conditions of urgency can never justify exceeding the limits of the Constitution. footnote25_ukcp124 25 milligans, 71 U.S. to 120–21. Elsewhere, however, the court argues that « necessity » could justify the imposition of martial law and the use of military courts to try civilians when ordinary courts are not available. footnote26_4gkl1ub 26 milligan, 71 US to 127. It is important that this last part of the Court`s opinion dictates and does not constitute a necessary and binding part of the Court`s case-law. This alone raises doubts about whether there really is a « necessity » loophole that allows the military to bring civilians to justice. But the bigger problem is that a necessary exception to the Constitution is impossible: it is a fundamental principle of American constitutional law, reaffirmed countless times before and after the Milligan decision, that government is always constitutionally bound under any circumstances. footnote27_cut2e94 27 Youngstown, 343 U.S.

579; Carter v. Carter Coal Company, 298 U.S. 238 (1936); Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861); McCulloch v. Maryland, 17 U.S. 316 (1836); and Marbury v. Madison, 1 Ranch 137 (1803).

As White`s story shows, martial law – a term generally referring to the displacement of civilian authorities by the military – can and has been enforced in the United States. In fact, federal and state officials have declared martial law at least 68 times throughout U.S. history. footnote5_0a29f86 5 Joseph Nunn, Guide to Declarations of Martial Law in the United States, Brennan Center for Justice, August 20, 2020, www.brennancenter.org/our-work/research-reports/guide-declarations-martial-law-united-states. But the concept was never well understood. The Constitution does not mention martial law, and no act of Congress defines it. The Supreme Court has taken up this issue only a few times, and the Court`s reasoning in these decisions is contradictory and vague. footnote6_9nhfr1d 6 Duncan, 327 U.S. 304; Sterling v.

Constantine, 287 U.S. 378 (1932); Moyer v. Peabody, 212 U.S. 78 (1909); Ex parte Milligan, 71 U.S. 2 (1866); and Luther v. Borden, 48 U.S. 1 (1849). The precedents are also old: the most recent – in which the court overturned Harry White`s conviction – was decided nearly 75 years ago.

Nothing in the plain language of Articles 251 and 252 indicates that they authorize martial law. The clause in Article 251 authorizing the military to « suppress an insurrection » does not mean that federal troops can assume the role of the civilian government in this process. On the contrary, he believes that the army can help overwhelmed civilian authorities by doing exactly what soldiers are trained to do: fight and defeat an armed and hostile group. But Luther also leaves many questions unanswered. It does not explain the legal basis of martial law, its scope, when it can be declared or who has the power to declare it. In fact, in Luther or any subsequent case, the Supreme Court never ruled directly that the federal government had the power to impose martial law. In one case, the court suggested in « dicta » — a term for the wording of a court opinion that is not a necessary part of the holding company and is not strictly legally binding — that the federal government can declare martial law. footnote18_jqfiroz 18 milligan, 71 US to 127. That was the case in another case, but only for the purpose of deciding a narrower question of law. footnote19_jh8rtw8 19 Duncan, 327 U.S. to 313. None of these decisions conclusively confirms the existence of a federal martial law authority.

The governor of Alabama, realizing that local law enforcement was corrupt and useless, declared martial law. The Alabama National Guard used the authority of the military regime to act in ways that would otherwise be unconstitutional. Firearms licences were declared invalid, private clubs were searched and property confiscated. The entire underground economy was wiped out in less than a year. Jackson argued that his actions were justified because the New Orleans government had ceased to function in the wake of the impending British attack, so the military was the only organ that could protect the city. In this situation, he said, the military had the authority to do whatever was « necessary » to preserve New Orleans. footnote7_xgdc20d 7 Dennison, « Martial Law, » 61–62; and Vladeck, « Field Theory, » page 422. This was a new argument, and he couldn`t explain why he kept the city under martial law for so long. In an 1815 case, the Louisiana Supreme Court described Jackson`s behavior in New Orleans as « trampling on the Constitution and the laws of our country. » footnote9_8dze81r 9 Dennison, « Martial Law, » page 64 (cited Johnson v. Duncan et al. Trustees, 1 Harr.

Cond. 157–70 [1815]). Similarly, Acting Secretary of War Alexander Dallas stated in a letter to Jackson that martial law in the United States had no legal existence outside of the Articles of War, the predecessor of the modern Uniform Code of Military Justice. footnote10_x11i63q 10 Dennison, « Martial Law, » 64 (quoted by Dallas to Jackson, April 12, July 1, 1815, in John Spencer Bassett and J. Franklin Jameson, eds., Correspondence of Andrew Jackson, Vol. 2, Andrew Jackson Papers, Library of Congress, Washington, D.C., 1926–35, 203–4, 212–13). Overall, the consensus in 1815 was that martial law was simply another term for military law, and that military jurisdiction could not extend beyond the armed forces themselves. Under martial law, the regime was able to reduce violent urban crime, collect unregistered firearms, and suppress communist uprisings in some areas. At the same time, a number of important new concessions were made to foreign investors, including a ban on strikes by organized workers and a land reform program. In January 1973, Marcos announced the ratification of a new constitution based on the parliamentary system, with himself as president and prime minister.

However, it did not convene the transitional legislation requested in that document. In 1849, the U.S. Supreme Court upheld the legality of Rhode Island`s declaration of martial law in Luther v. Borden. footnote15_wthm102 15 Luther, 48 U.S. to 47. Although Youngstown did not deal with declaring martial law, Justice Jackson briefly mentioned the concept in his unanimous opinion. After stating that the framers of the Constitution « made no express provision for the exercise of extraordinary authority in the aftermath of a crisis, » he added the following caveat in a footnote: « I exclude, as in a very limited category for me, the imposition of martial law. » footnote9_o1d7kp6 9 Youngstown, 343 U.S.