Is Martial Law Constitutional? by Robin Tong.

This evening as I write this article a major hurricane is bearing down on the entire eastern seaboard of the United States. The cities of Charleston, Washington D.C., Boston, and New York City, to name just a few, have ordered mandatory evacuations and are trying in these last few hours to prepare their citizens for the worst before the storm makes landfall.

Several governors and the President of the United States have declared states of emergencies, and fear is spreading of hardship, food shortages, power outages, and overwhelmed hospitals. FEMA and the Armed Forces and the National Guard and Reserves are predeployed and are on standby. And everyone is wondering… if the worst should come to pass… will Martial Law be declared and will we have a repeat of Katrina of troops and law enforcement going door to door and murdering people in the streets.

And I find myself asking if the Worst comes to Pass… is Martial Law Constitutional?

Martial Law is the suspension of the Constitution under the declaration of an eminent danger, disaster, emergency, rebellion, insurrection, invasion, time of war, etc. During such time the Bill of Rights is suspended, and the Courts and the Congress or State Legislatures may also be suspended, as well as any state office (even a governor) or federal office which opposes the declaration as well. NOTHING in the Constitution grants officers of federal or state government this power.

Here is why is it UnConstitutional:

Article VI – Debts, Supremacy, Oaths: The Supreme Law of the Land is comprised of the Constitution, Law, and Treaty. The Constitution has supremacy over Law and Treaty, as it is it which constructs our governance, the separation of powers and checks and balances, and the powers and authorities of the People, the States, and the Union, respectively, and every officer of the United States and the several states are bound by Oath to the Constitution.

Article 1, Section 8 Powers of Congress: Congress may only make laws respecting the Powers vested and enumerated in the Constitution. Congress has no authority whatsoever to legislate or vest powers which it or the federal government are not granted or are specifically prohibited by the Constitution. Claiming the authority, or vesting such authority into any officer of government to declare martial law and suspending the Constitution is NOT a necessary and proper Law enforcing the Constitution. The Constitution can not be enforced by declaration of martial law which suspends it.

Article 1, Section 8 Powers of Congress: Although the militia is charged with suppressing Insurrections and repelling Invasions, it is also charged with executing the Laws of the Union. Our Supreme Law is comprised of the Constitution, Law, and Treaty, and the Constitution has supremacy over both Law and Treaty. As martial law is the suspension of the Constitution, and the militia is charged with executing the Laws of the Union, the suspension of the Constitution, the Bill of Rights, or any office of State or Federal government which refuses to yield and comply with martial law is a Treasonous Act.

It is important to note that the militia is every able bodied man of legal age, and the Congress is obligated to train and arm them. It is the common citizenry, as well as the Armed Forces, whom are to be called upon to enforce the laws of the Union and protect the Constitution. For a permanently standing Army or Police Force to impose martial law upon the Union or any of the several states and suspend the Constitution is an Act of Treason and any officer whom gives or obeys the order should be considered a domestic Enemy of the United States.

The Bill of Rights and various other Amendments: The rights of the states and the people are not mere privileges which may be regulated or suspended by the whims or declarations of government. The proper context of Rights and Liberties is that they are the Powers and Immunities of the Citizens of the United States which the Constitution EXPLICITLY PROHIBIT’S the powers or authorities of Government from infringing upon or abridging.

Regardless of the proclamations, justifications, and orders that government may give for enforcing the presumed lawful authorities which it grants to itself and deprives of the States and the People, anyone can read for themselves the prohibitions, restrictions, and limitations placed upon the powers of government by the Constitution. Even a casual reading of the Constitution reveals that such restrictions include: shall make no law, or prohibit the free exercise, or abridge the freedom, shall not be infringed, shall not be violated, nor shall be compelled, the accused shall enjoy, shall be preserved, shall not be required, shall not be construed to deny or disparage, shall not be construed, shall make or enforce any law which shall abridge the privileges or immunities, nor deprive, nor deny, or in any way abridge, shall not be denied or abridged, etc., etc., etc.

And no matter the justification and the powers that governance may claim to wield or order to be enforced, anyone can read in plain language as stated in the Constitution that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people; and that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The citizens have the sole right to enforce pro-accountability and oversight of their own government by being able to witness and report on the acts and conduct of various officials in the performance of their duties, to engage the media and public discourse with the facts, to submit evidences to Grand Juries and Trial Juries of civil and criminal cases, and to present in the halls of governance to seek redress, and even to oppose governance for its acts and its conduct and demand the impeachment of any and every officer of government.

Study infamous crime and the grounds for Disqualification that all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. Take note that disqualification can be for misdemeanors. Honor should not be unquestioned merely becomes one is vested with the powers and authorities of government. But those vested with the powers and authorities are charged to uphold the highest Discipline and Honor. The People have the right to question, demand, and enforce the honor and accountability of every officer of government. That is why the Bill of Rights exist to censure the authorities of government. That is why we have Juries standing between the powers of government and the rights of citizens, and we decide for ourselves the merits of the law, the validity of the evidences, and the weight of guilt against the accused and enforce the Rule of Law upon both governance and the accused. That is why every officer of government may be Impeached, barred from office, and subject to civil and criminal prosecutions, even for misdemeanors.

Law. Statue. Ruling. Order. Regulation. How can any manifestation of the powers and authorities of our government criminalize and claim that We the People do not have the right to peacefully exercise our liberties and to enforce pro-accountability and oversight of government?

Article 1, Section 9 Limits on Congress: The Writ of Habeas Corpus is a restriction upon the powers of government to arrest persons without charge and the protections of due process and a jury trial and it may not be suspended unless the public safety requires it. Such suspension is supposed to be of temporary and short duration, and if the safety and domestic tranquility are not able to be restored in short order, the accused still has the right to demand that a writ of habeas corpus be issued and to be tried in a jurisdiction removed from the public danger so that he may enjoy a speedy trial with the protections of due process enforced by an unbiased jury.

Article 1, Section 9 Limits on Congress: A Bill of Attainder is a bill or declaration having a negative effect on the rights of individuals or the rights of the citizenry as a whole, resulting in the loss of all civil rights by governmental declaration during times of public danger or as a result of a sentencing for a crime. Historically Bills of Attainder have resulted in executions or long terms of imprisonment without any means of redress. The Constitution explicitly prohibits the passage of Bills of Attainder as Law.

Article 1, Section 9 Limits on Congress: An Ex post facto law is a law formulated or enacted retroactively to criminalize and punish acts or behaviors which at the time of their commission were lawful to commit.
To quote the opinion of Justice Chase in Calder v Bull (3 US 386 [1798]) “1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.”

It is important to note that when troops or law enforcement impose martial law, not only are they violating the Bill of Rights and subsequent Amendments which expressly forbid government from infringing or abridging the powers and immunities of the People, the are also exercising powers of suspending the Writ of Habeas Corpus and enforcing Bills of Attainder and Ex post facto law which government is also forbidden to do. The aftermath of Hurricane Katrina is one of the most infamous examples in modern history in which martial law was declared and enforced (although afterwards almost all of the officers responsible for issuing or enforcing those orders have denied it, even though some of them were actually recorded on video tape giving the orders), the Super Dome and the entire city of New Orleans was turned into a giant concentration camp, foreign Mexican troops and private contractors and U.S. troops and law enforcement were going door to door seizing the arms of law abiding citizens, and dozens of persons were murdered in the streets and euthanized in hospitals by law enforcement and by doctors and other authority figures.

Fortunately after all these years several persons in law enforcement and in the medical profession have been held to account and have been convicted of MURDER. However, to date not one elected or appointed officer of state or federal government has been held to account, and their prosecution has been thwarted by the doctrine of privileged immunity which the government, not the Constitution, has created to shield officers and agents of government from prosecution and liability. That doctrine of immunity, same as martial law, has no basis or authority whatsoever vested or granted by the Constitution.

Article 2, Section 1 The President: The President is bound by Oath to faithfully execute his office and to preserve, protect, and defend the Constitution. As martial law is a suspension of the Constitution, the order to impose martial law would be a violation of the Constitution and an Act of Treason.

Article 4, Section 4 – Republican government: Every officer of the United States is bound by their Oath to guarantee to every state a Republican form of government and may not interfere in the internal affairs of a state unless the state request assistance. The officers of every state, in turn, are bound by their Oath to preserve a republican form of government on behalf of their citizens.

Amendment 14 – Citizenship Rights: If federal government were to declare martial law and suspend the Constitution, the States have the obligation to REFUSE to enforce any law which abridges the privileges or immunities of the citizens, deprive any person of life, liberty, or property without due process, or deny any person the equal protections of the laws. This restriction also prohibits the states from enacting any such laws. And as Congress is vested with the power to ensure that the citizens are not deprived of their privileges and immunities and equal protections of the law, for the federal government to enact martial law suspending the Constitution would be Treason.

This review doesn’t even scratch the surface, as it does not review in depth various draconian acts of legislation, executive orders, or judicial decrees by which the government claims the powers and authorities to strike the Bill of Rights in their entirety with such egregious Acts that they lay claim to be able to execute any citizen without trial or redention them for life without charge or trial or to seize the entirety of their personal property, food, medicine, transportation, etc., without just compensation, and may press them into forced servitude and work brigades as slaves in times of declared emergencies.

The defiance and refusal to enforce Martial Law is the last best peaceful means to defend the Constitution and our Republican form of government and enforce the accountability of every officer of government to the Rule of Law.

The annuals of our nation’s history show that generation after generation our governance imposes its own will and agenda upon the American People with little respect for the Bill of Rights, and only rarely censures its own powers in the aftermath of years of civil unrest and public outcry. If the day ever comes that martial law is implemented and governance orders our troops and law enforcement into the streets and door to door waging tyranny upon the American people and forcing them to yield to their liberties under the Bill of Rights, they deserve the same fate as the Nazi’s whom stood trial at Nuremburg.

Never again should we allow thousands upon thousands of our fellow citizens to be rounded up and shipped to internment camps as we did in WWII. Never again should we allow entire cities to be turned into concentration camps in the aftermath of disaster and declared emergency as we did with Katrina. Never again should we allow martial law to be declared giving free reign for innocents to be arrested en mass or gunned down in the streets, or euthanized when the power goes out and the storm waters rise as we did in New Orleans and other southern communities.

If the worst does come to pass, it is the duty and obligation of government and our Oath Sworn to enforce the Laws of the Union and the equal protections of the law, and to render all aide and comfort available to relieve the misery and hardship. Martial Law suspending the Constitution would be a violation of sacred trust. Surely we all remember well into the nightmare of Katrina when after several days a well respected general took charge of the situation and went street to street screaming and yelling at the troops and police. “Safe those Weapons!” he commanded of some. “Shoulder those Weapons, God Damn It!” he commanded of others. The images which played day after day on the national news are still burned sharply into my mind.

Never again!

Robin W. Tong