Martial Law

JenE posed an interesting question, recently: Is Martial Law constitutional, and is it legal? This is my attempt at answering her question more fully.

First off, let's define a few terms for those who aren't familiar with the subject matter.

From Dictionary.com--

Martial Law: Temporary rule by military authorities, imposed on a civilian population especially in time of war or when civil authority has broken down.

Habeas Corpus: 1. One of a variety of writs that may be issued to bring a party before a court or judge, having as its function the release of the party from unlawful restraint. 2. The right of a citizen to obtain such a writ.

Posse Comitatus Act: (my own elaboration) An 1878 document stating that--without an official act of Congress--the military is prohibited from performing in a law-enforcement capacity, within the United States.

Here's my take: Since Martial Law entails the military ruling civilians, I don't see how it's in harmony with our founding document. The Constitution calls for self-government--in other words, government by the people. Clearly, a militaristic rule is outside the scope of what our Founders intended--especially considering that many--if not most--of the Founders were against having a standing army.

The Constitution allows the temporary halting of Habeas Corpus writs, but only during times of rebellion or invasion (Article I, Section 9). (Thanks to Salt for reminding me of this). Just to reiterate, this is a suspension of Habeas Corpus, not a termination. When it speaks of "invasion," I assume it means something along the lines of events that transpired in the War of 1812, for example, when the British literally invaded Washington, D.C. The "rebellion" aspect is trickier. I don't consider the confederacy's actions as a rebellion, in the strictest sense. The South desired a complete separation from the North into its own nation, not just the creation of chaos within the United States. Perhaps The Federalist Papers better define and elucidate our Founders' thoughts on the concept of rebellion.

I think it's clear that suspending Habeas Corpus and instituting Martial Law are not synonymous. The Constitution makes provision for the first, and none for the latter. I think it's worth mentioning, too, that the Constitution only allows the federal government powers specifically enumerated in the document, while all other powers belong to the states. But we all know how well that section is followed, don't we? If an argument is to be made in its favor, it must come at state--not federal--levels.

In addition, Martial Law violates the Posse Comitatus Act, mentioned above.

As for legalities: that deemed legal certainly does not equate to that which is constitutional. Is it possible that a judge might rule in favor of Martial Law, or that Congress might vote it into existence?

These days, you'd better believe it.