No, Martial Law Is Not Coming to America

Craig Bruce Smith

Amid the panic of the COVID-19 pandemic, with large swaths of the country stuck at home, the economy paralyzed, and state elections postponed, Yale University forensic psychologist Bandy Lee ominously suggested on Twitter that President Donald Trump would use the opportunity to “impose martial law.” Newsweek began publishing stories with fear-inducing titles such as “Inside the Military’s Top Secret Plan If Coronavirus Cripples the Government” and “Inside the U.S. Military’s Plans to Stop ‘Civil Disturbances.’” With thousands of members of the National Guard deployed at the state level and U.S. Navy hospital ships entering domestic waters, Vice President Mike Pence felt compelled to state that, “I want it to be understood that this is not martial law.” Yet The Associated Press acknowledged that “rumors of martial law fly despite reassurances.”

American history and the strength of our system of checks and balances should be enough to dispel such rumors. While fears of martial law turning into dictatorship have a long and deep history in America, so too does the use of the American military to help alleviate domestic crises of the sort we’re currently facing — and the latter has yet to lead to the realization of the former.

Before we go any further, we should define our terms. Martial law is a very specific and rare phenomenon outlined in Article I, Section 9 of the U.S. Constitution. There, it is defined as the suspension of the trial by one’s peers guaranteed under the Bill of Rights in favor of military justice, or tribunals. It exists only for “cases of rebellion or invasion” in order to maintain “the public safety.” Nationally, only the president (with an act of Congress) can declare it, though it can be imposed on a lesser scale at the state and local levels through a governor’s use of the state National Guard or through the state National Guard’s federalization by the president.

Fears of martial law are as common in American history as the declaration of martial law is rare. We have dreaded the perceived tyranny of unlimited military control since before the United States was even a country: American colonists were fearful of a victorious general becoming a dictator like Julius Caesar or Oliver Cromwell. For much of the colonial era, America lacked a formal military, instead relying on local militias made up of men between the ages of 16 and 60. A standing army of British soldiers only appeared on American shores on three occasions: in 1676, to instill royal authority in the aftermath of a revolt against the Virginia government known as Bacon’s Rebellion; in 1754, to fight during the French and Indian War; and, finally, in 1768 to silence Boston’s “no taxation without representation” protests. The last resulted in the Boston Massacre, certainly among the low points in American civil–military relations.

Six years later, in 1774, the British closed the port of Boston, suspended local government, and seized colonial guns and gunpowder under the Coercive or “Intolerable” Acts. These acts were designed for the “suppression” of colonists’ “riot and tumults” during the Boston Tea Party and essentially imposed martial law. They would remain in force until Massachusetts assented to parliamentary taxation and repaid the British East India Company for the millions of pounds’ worth of tea thrown into Boston Harbor. And they were a key part of the indictment of King George III in the Declaration of Independence: Since the king had “affected to render the Military independent of and superior to the Civil power,” American patriots felt justified in revolting.

These experiences all came to define how the United States employs the military domestically. Since General George Washington selflessly surrendered his commission to Congress in 1783, civilian supremacy over the military has remained sacred. Ratified in 1789, the U.S. Constitution intentionally limited the domestic power of the military, separating its control between the president and the Congress.

Yet while early Americans were deeply fearful of unchecked military authority, they were still aware that using the military domestically might be a necessity in certain situations. In fact, the Constitution Convention of 1787 was partly spurred by the inability of the federal government created by the Articles of Confederation to suppress a rural farmers’ uprising in western Massachusetts known as Shays’ Rebellion.

Thus, martial law does exist as a legal option. But at the national level it has been used only once, in perhaps the most extraordinary circumstances of all: During the Civil War, President Abraham Lincoln suspended habeas corpus, or the right to a trial by jury, as a means to defeat the Confederacy and preserve the Union. This suspension continued in the South during Reconstruction. After it was ended under President Rutherford B. Hayes, Congress passed the Posse Comitatus Act of 1878 in order to enhance the Constitution’s restrictions on the use of martial law. The act prohibited the military from policing U.S. civilians, barring an act of Congress.

At the state and local levels, however, martial law has been employed more often, and it has a checkered history. General Andrew Jackson used it in 1815 before and after the Battle of New Orleans, earning himself the derisive nickname “American Napoleon,” not to mention a contempt-of-court citation. Joseph Smith, the mayor of Nauvoo, Ill., and the founder of Mormonism, used it in 1844, as did Utah’s Mormon governor, Brigham Young, in 1857. Both were brought up on charges as a result: The Illinois governor imprisoned Smith for treason, leading to Smith’s murder by an angry mob, while President James Buchanan pardoned Young. Later, martial law was used at the state level during strikes and protests in the 19th and 20th centuries and to combat a potential Japanese invasion and espionage after the 1941 bombing of Pearl Harbor.

But it’s also been used in response to natural disasters and to shield the innocent. After the 1871 Great Chicago Fire and the 1906 San Francisco earthquake, the military was called in to assist victims. During the 1950s and ’60s, the military was used to defend African-American students, promote school integration, and protect the Freedom Riders in Montgomery, Ala.

The domestic use of the military absent martial law is another story entirely. It has occurred repeatedly in American history from the 18th century onward, usually without violence. In 1794, President Washington personally led a militia to stop the Whiskey Rebellion. And in 1970, Richard Nixon employed the National Guard to deliver the mail during a postal strike. Such occurrences have, in short, remained a constant throughout our history, though they’ve become less common in recent decades.

That history is why no one should fear martial law if President Trump federalizes the National Guard or employs active-duty military domestically in response to the current crisis. The U.S. Constitution and the Posse Comitatus Act still protect the rights of U.S. citizens as much today as they ever did. Perhaps even more importantly, the U.S. military has no interest in assuming control of the country’s government; its subservience to civilian leadership remains as sacred today as ever, among both service members and the general public.

Our brave men and women in uniform have the capacity to help alleviate some of the strain of this unprecedented crisis. No one should be alarmed if they’re called upon to combat the present pandemic. They have all are sworn an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic”— and that includes against viruses.

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