ALAN DERSHOWITZ, OPINION CONTRIBUTOR
The views expressed by contributors are their own and not the view of The Hill
The Constitution, quite surprisingly, is silent on the issue of martial law and emergency powers. Martial law and emergency powers were not actually uncommon at the founding of the nation, and several state constitutions provided for them in cases of emergency. That silence, however, has not stopped presidents from exercising such powers, generally upon the request and with the cooperation of states.
In more recent history, for instance, President Johnson deployed federal troops to Detroit in 1967 during a riot and once more to Chicago amid violence during the Democratic convention in 1968. He had the blessing of the states and cities in both cases. California requested and received federal troops during the Los Angeles riots in 1992. However, President Eisenhower sent the 101st Airborne Division to Little Rock against the wishes of Arkansas to enforce high school integration in 1957. President Kennedy federalized the National Guard to force integration of the University of Alabama in 1962, also over state objections.
The closest the Constitution comes to regulating these powers is in a prohibition against suspending the writ of habeas corpus “unless when in cases of rebellion or invasion the public safety may require it.” We are definitely not experiencing an invasion, nor do the current disturbances, violent as some but not others have been, qualify as a rebellion.
Accordingly, even if President Trump were to try to invoke martial law or emergency powers, claiming that they are inherent with his authority as commander in chief of the armed forces, the courts would have the last word, because citizens detained without due process would be able to secure judicial review by means of the “great writ” of habeas corpus. The courts must remain open even during dire emergencies.
What then would the courts do if the president were to declare martial law and have the military detain protesters? The answer here is clear. No one knows. There are no direct precedents for such an action when our nation is in peacetime. Even the wartime precedents speak with different voices. President Lincoln suspended habeas corpus during the rebellion we call the Civil War. Moreover, President Roosevelt ordered the confinement of more than 100,000 Americans of Japanese descent after Pearl Harbor and martial law was declared in the territory of Hawaii.
In a case growing out of the Civil War, the Supreme Court justices used soaring language, pointing out that the framers “foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril, unless established by irreparable law.”
The country “has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln.” If this right to suspend the provisions of the Constitution during the great exigencies of government “is conceded and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate.”
Despite this language, the court allowed detention of the citizen who brought the petition. Governors have declared martial law in response to all manner of domestic disturbances, ranging from strikes to riots to disputes over oil production. In a case involving a conflict between coal miners and mine owners, Justice Oliver Wendell Holmes wrote that a governor may seize “the bodies of those whom he considers to stand in the way of restoring peace.” The courts generally have not intruded on the exercise of such extraordinary powers while emergencies persisted, but the courts have insisted that they end when an emergency is over.
The history of martial law in our states has been mixed with numerous abuses and excesses. This should not be surprising, since “martial law” is a contradiction in terms. If it is martial, meaning the rule of the military or the police, then it is not law. It is power. If a president, as distinguished from a governor, decided to declare martial law across the nation, or even in selected states or regions, would he need the approval of Congress? Another question is whether Congress has already given the president the authority to declare martial law or to suspend individual rights.
There are several statutes, including the Insurrection Act and the Posse Comitatus Act, that may be relevant but none are definitive. Were the president to claim that both the violent disruptions and the threat of a renewed spread of the coronavirus justified the use of the military or the suspension of certain basic rights, he would be embarking on uncharted waters, and so would the courts. There is no governing precedent for a combination of dangers such as the ones today. The courts would look to past invocations of martial law and emergency powers for guidance. They would pay greater deference to an executive branch declaration if Congress authorized it than if the president acted alone.
Back in the early 1970s, I wrote a series of articles about the history of martial law and emergency powers. This is how I summarized our mixed record back then. “What then could we reasonably expect from our courts if any American president during a period of dire emergency were once again to suspend important constitutional safeguards?”
“Our experiences suggest the following outline. The courts, especially the Supreme Court, will generally not interfere with executive handling of a genuine emergency while it still exists. They will employ every technique of judicial avoidance at their disposal to postpone decisions until the crisis has passed. Indeed, although thousands of persons have been unlawfully confined during our various periods of declared emergency, I am aware of no case where the Supreme Court has ever actually ordered a release while the emergency was still in existence.”
“The likely exceptions to this rule of judicial postponement will be cases of clear abuse where no real emergency can be said to exist, and cases in which delay would result in irrevocable loss of rights, like those involving the death penalty. Once the emergency has passed, the courts generally will not approve further punishment. They will order the release of all those sentenced to imprisonment or death in violation of ordinary constitutional safeguards. But they will not entertain damage suits for illegal confinement ordered during the course of the emergency.”
Let us hope that the nation never gets to a point where martial law or other emergency measures that curtail fundamental rights are deemed necessary. If it does, there are no absolute guarantees in our Constitution or in our precedents to assure that the proper balance will be struck.
Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. He is an author whose newest book is “The Case For Liberalism in an Age of Extremism” available on Kindle. Follow him on Twitter @AlanDersh.