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by Bernie Cosell
28 Oct 1993

Well, given the underwhelming response to my inquiry, I went and did the unexpected: I tried to look up some info on martial law. I realize that probably nobody but me cares about this kind of detail, but such is life...

What I discovered is that there are TWO notions that get bundled under the term 'martial law'. One involves the suspension of civil rights and the replacement of the Article III court system with a military court [I think that this latter part is really the hallmark of this sort of martial law]; the other involves Executive action to deploy troops for matters of civilian law enforcement.

The doomsayers confuse the two and assume that an instance of the latter implies the imminent imposition of the former. NOT TRUE.

REAL martial law is a very restricted matter. I guess there is a bit of a logical conundrum at play: if Congress were to pass an act declaring martial law, such an act would presumably disempower the Supreme Court, and so they wouldn't be in a position to review the law and declare it unconstitutional.

On the other hand, I happened to recently rereading Marbury v Madison and it is clear that the SC would NOT take such an end-run to their review powers lightly... dunno quite what they could do but it is for- sure that the SC, and, I would certainly hope, the American populace, would not take lightly having the Congress just be able to void the Constitution by passing a law to that effect.

But what CAN Congress do about this sort of martial law then? This is fairly clear, I think: the military is allowed to impose military law *only* in a theatre of military operations. Basically, the SC's position is that if there is sufficient order for the civilian court system to be functioning, then military courts CANNOT be imposed [Ex Parte Milligan (1866); reaffirmed in Duncan v Kahanamoku (1946).

What about the other type of 'martial law'? Well, that's quite a different matter: the President *can* order the "Army and Navy of the United States and ... the Militia of the several States" to intercede in domestic matters. BUT: that has [so far] ONLY been used to quell domestic disorder OR to enforce the law.

The first instance was by President Washington, who used state militias to quell the Whiskey Rebellion; we're all familiar with other ones: LBJ sending troops into Alabama, Kennedy sent troops to Mississippi. But in these cases, there's no instance that I've been able to dig up info in which the troops so-called-up were used for extra-Constitutional activities -- just enforcement and peace-restoring matters.

So I think that the alarmists are really offbase here -- I had suspected so, but my research, scanty though it was, confirmed my suspicions: REAL martial law is a very serious matter and would only really be a consideration in a true theatre of war [and no, the "War on Drugs" doesn't count, no matter what the rhetoric you hear]. Simple deployment of militia/federal troops is not really the same thing at all, and in any event such deployments only occur in SUPPORT of the Constitution, not in DEFIANCE of it.

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