It’s a sign of the times. People in the United States and around the globe are wondering aloud, “When will President Trump declare martial law?”
But what does martial law even mean? And under what circumstances can it even be declared? America has been under martial law before, and while it has allowed injustices, it is not a magical dictatorship switch that the President can throw. In America, the President is not allowed to suspend the Constitution; and the separation of powers cannot be suspended by a state of emergency or declaration of war.
What martial law doesn’t do in the USA
There are other countries where the threat of martial law and government by executive mandate via the military is a very real threat. Even in first world countries like the United Kingdom, Sweden and France, martial law allows governments to suspend civil courts, engage in mass arrests and try ordinary citizens under military courts.
However, the United States has stronger protections in place to prevent the abuse of martial law and states of emergency. Americans inherit a tradition of personal liberty, due process and paranoia about executive power, which we are benefiting from more and more from these days.
The Supreme Court’s powers of judicial review are not suspended
The Supreme Court has established that even in cases of martial law and states of emergency, it is still the supreme arbiter of the land. Military tribunals and executive orders are subject to review by the Supreme Court.
Civil courts and authorities can only be ignored if they cannot operate at all
The only legal use of martial law recognized by the United States is to restore and maintain peace during civil unrest or invasion. Even then, the use of military power is limited that which is required to keep order.
If the courts can be opened, you cannot be tried by the military. If the normal police and elected officials can do their business peacefully, the military cannot override them. The military only has exclusive power in the theater of active military operations.
During the Civil War, a civilian Confederate sympathizer named Lambdin Milligan was arrested and sentenced to death by military tribunal. Even in the middle of an armed insurrection, Lincoln was found to have overstepped his grounds by authorizing arbitrary arrest and detention and circumventing the civil courts and laws. The Supreme Court made clear in its ruling:
“If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theater of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course.As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.”
And again clarified in World War 2, when civilians were tried by military tribunals in Hawaii:
“Our system of government is the antithesis of total military rule.. Where peace exists the laws of peace must prevail.“
Ultimately, the United States of America and its Constitution says that even in cases of war and rebellion, the military is only allowed to act as the government when there is no other government is available; and then only when it is absolutely necessary.
Trump nor any other president cannot suspend the legal system on his say-so, so long as the courts can open their doors.
Officials and commanders can be held legally responsible for their actions
While the Supreme Court has said, “courts must guard themselves with special care against judging past military action too closely by the inapplicable standards of judicial, or even military, hindsight,” it has also made clear that military commanders and civilian leaders are legally accountable for their actions during martial law.
When Governor Rhodes of Ohio called in the National Guard to Kent State and caused one of the great tragedies of the Vietnam War protest movement, he was sued for wantonly endangering students by deploying the Guard. In the suit that followed, the Supreme Court found that martial law did not give him the protection of the Eleventh Amendment and that he could be held accountable for his actions, as could the commanders and officers of the National Guard.
The message in the United States is clear: martial law is limited by the Constitution, must show its necessity and grants no immunity from consequences.
What can you do to keep it this way
Fight dangerous myths about martial law
Words and preconceptions matter. When we do not understand what limits the government is under, we cannot recognize when our government has become illegal and unconstitutional. At this moment, by the laws of the United States, Trump is legally our president. You may hate him, but his government is not unconstitutional. And that makes violent rebellion or insurrection against him illegal and unjustified by the rule of law.
Read and spread this article, and others like it. It is important that citizens understand that even in states of emergency and insurrection, the President has limits on his power. And if Trump flaunts those restrictions, we need to know it and see it as breaking the law of the land. If more people understand what he is allowed and not allowed to do, more people will join with you in standing up to it if he crosses the line into dictatorship. Peacefully, one hopes, but violently if necessary. The Founding Fathers viewed the overthrow of an illegal government as a right and duty of all patriots.
At the same time, make sure to separate in your mind the line between a corrupt, incompetent and unpopular presidency, and a truly illegal one. Trump’s administration may be the former, but it is not the latter yet. But if you think this first week is bad, imagine if the President learned that he could move completely outside the law without being held accountable.
Do not tolerate the weakening of judicial review and orders
I am against most of the blind panic and hyperbole I’ve seen since Trump’s election, but the so-far unconfirmed reports by the ACLU that immigration officials are ignoring a federal judge’s order to halt deportations are particularly chilling. Judicial review is one of the great walls between us and abuse of power by the President, as it is the branch capable of moving as fast as the President does. Congress is a slow lumbering beast, and can land some pretty devastating blows on presidential power, but the courts are the real line in the day to day battle to maintain our freedoms.
Demand that officials that do not comply with court orders are corrected or punished; and that government agencies recognize the ability of the courts to override the President’s orders.
Remember this matters
Some of you might be thinking – what does it matter? Trump can make himself Emperor, arrest the Supreme Court, suspend everything, etc. etc. Well, if that happens, Trump is no longer the President of the United States and it is the duty of all Americans to reestablish a constitutional form of government by any means necessary. If we are so far gone as a nation that it no longer matters how legitimate our government is and how much it operates by the rules we’ve all agreed to live under, then we no longer deserve to exist. But I do not think we are there yet. Maybe one day, but not today. And hopefully not in my lifetime.
If you think Trump’s power plays are an inevitable escalation toward dictatorship, knowing your rights and his limits are key to making your fellow citizens understand his contempt for the law. And makes the case for all of us, no matter our political persuasion, to stand up and fight for democracy and the Constitution.
I think people do care about whether their president is legitimate or not, even those who voted for him. I think people do not want to see a country ruled by an tyrant we have the privilege with replacing with another tyrant every four years.
We are still a nation of laws. One man cannot change that, even the President.