Extension of military rule to civilian populations during times of war and other emergencies.
Under martial law, military officials have the authority to take actions that suspend some or all civil liberties and would normally be unconstitutional. The justification for martial law lies in the fundamental concept of self-defense. When survival is threatened, people’s first obligation must be to self-preservation and not to the Constitution. Although no specific provision in the Constitution authorizes martial law, the Supreme Court has found that the concept is an implicit part of the constitutional order. Some evidence for this position comes from Article I, section 7, which provides for the suspension of the writ of habeas corpus
The Court has considered the constitutionality of martial law on a few occasions. During the Civil War
After the end of the Civil War, the Court was presented with another opportunity to consider the constitutionality of martial law. In Ex parte Milligan
The Court also considered the constitutionality of martial law during World War II. In 1941, immediately after the attack on Pearl Harbor, the governor of Hawaii declared martial law, an action ratified by President Franklin D. Roosevelt two days later. In Duncan v. Kahanamoku
Corwin, Edward S. Total War and the Constitution. New York: Alfred A. Knopf, 1947. Fairman, Charles. The Law of Martial Rule. 2d ed. Chicago: University of Chicago Press, 1940. Neeley, Mark E. The Fate of Liberty: Abraham Lincoln and Civil Liberties. New York: Oxford University Press, 1991. Rankin, Robert. When Civil Law Fails. Durham, N.C.: Duke University Press, 1939. Rossiter, Clinton. Constitutional Dictatorship. Princeton, N.J.: Princeton University Press, 1948.
Duncan v. Kahanamoku
McCardle, Ex parte
Military and the Court
Milligan, Ex parte
War and civil liberties