Martial Law and the US Constitution…

Are The Democrat Governors Seizing Powers They Are NOT Allowed Under the US Constitution?

By Ralph Fucetola JD

Is This What Martial Law Looks Like?

Item: New Jersey Governor issues order authorizing state authorities to commandeer personal services, real and personal property.[1]

Item: California & New York Governors shut down the two largest state economies in the USA.[2]

Item: Pennsylvania Governor shuts all gun shops as “non-essential” and the PA Supreme Court finds that action not in violation of the 2nd Amendment right to keep and bear arms; beer distributors, however, remain open.[3]

Item: Texas Governor reasserts de facto independence by requiring all visitors from the Northeast and Louisiana to undergo 14 day quarantine.[4]

Item: Hospitals to triage by denying elder patients treatment in New York.[5]

Item: American central bank promises “unlimited” liquidity. A tsunami of fiat dollars.[6]

Martial Law is “the imposition of direct military control of normal civilian functions by a government, especially in response to a temporary emergency such as invasion or major disaster, or in an occupied territory.”[7]

The Founders of the United States of America had considerable familiarity with Martial Law. 

The King of England’s military occupied American cities and subjected patriots to summary “justice” without due process of law.  The Declaration of Independence singles out the imposition of Martial Law among its catalogue of the King’s abuses that justified American independence: the King made “the Military independent of and superior to the Civil power…”[8]

Therefore, when it came time to write the Constitution limiting the powers of the new central government it is not surprising that there is no provision in the Constitution permitting Martial Law.

Late last month as part of the COVID Emergency Health Summit[9] I interviewed constitutional scholar and lawyer, Larry Becraft, JD (known to many of us as The Dean of the Patriot Lawyers). In that interview[10] we discussed the possibility and legality of Martial Law as a response to the declared pandemic. This article is based on that discussion and subsequent research.

Since there is no provision in the Constitution allowing Martial Law, how did President Lincoln seek to impose Martial Law?[11] How did President Wilson do so? How did FDR do so, going as far as incarcerating hundreds of thousands of American citizens of Japanese origin for years?[12]

While there is no clause in the Constitution allowing Martial Law, there is a clause limiting it.

That is the Habeas Corpus clause. The section reads:  “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”[13]  The “Writ” is a judicial process by which a Judge can examine why an agent of government may or may not have authority to imprison a person.  Martial Law, without suspending the Writ, does not render “the Military… superior to the Civil power.” Note also, the clause expresses two specific grounds for suspending the Writ, and then only when “public safety” may require.  It does not include circumstances of contagion, although the Founders were familiar with repeated outbreaks of very serious diseases. Expressio unis est exclusio alte.[14]

This clause is part of the Constitutional Article on Congress and acts to limit any congressional power to permit the President as Commander in Chief to impose Martial Law. In any event, this clause, like the rest of the original Constitution, was amended by the Bill of Rights. Therefore, whatever power Congress has in this area, it is limited by the First Ten Amendments, including the right to keep and bear arms, and all of the other protections of the Bill of Rights.

Therefore President Trump has carefully avoided imposing Federal dictates on the States during the declared pandemic and his National Emergency Declaration.[15] Rather, as seen during his nightly television appearances, he is deferring to the State Governors to impose restrictions and take the other steps catalogued at the beginning of this article.  He has implied that the President does not have the power to close state schools, public accommodations, businesses and the like. Instead, the State Governors, issuing their own Emergency Regulations under the plenary police power of the States, have imposed restrictions that look a lot like Martial Law.

We know from the Civil War era Ex parte Milligan case (cited above) that “martial rule can never exist when the courts are open.”  Therefore we are particularly concerned that the courts in many areas are not open.[16]  The Department of Justice is apparently seeking Congressional approval for emergency powers that would, in effect, suspend the Writ of Habeas Corpus, as though the country were in a state of rebellion or invasion (by a foreign power).[17]    

There is a further legal principle that limits Martial Law. 

That legal concept is the universal right of Informed Consent.  I have written extensively on this topic.[18]  Simply put, the individual right to bodily integrity trumps forced medical treatment.[19] Vaccine mandates under Martial Law would clearly come within the purview of the Nuremberg Code, which, as a result of World War II and the Nuremberg Trials, limit the military power of governments to mandate medical interventions.  You have the right to refuse Informed Consent even if under Martial Law.[20]  

So there we have it.  Piecemeal Martial Law, imposed state-by-state, while the court systems are engaging in self-isolation.  We are faced with a “perfect storm” — perhaps leading to world-wide mandatory COVID vaccinations in just a few months, while elders and people with serious medical conditions suffer from a declared pandemic, and much of the world economy has been stopped by government fiat.

While Martial Law has no Constitutional authority, we certainly seem to be in a condition of Martial Law and it is only likely to get worse unless Americans assert their right to go about their normal business without harassment by over-zealous public officials.

Ralph Fucetola JD











[11]Ex parte Milligan, 71 U.S. 2 (1866), was a U.S. Supreme Court case that ruled the application of military tribunals to citizens when civilian courts are still operating is unconstitutional. In this particular case, the Court was unwilling to give President Abraham Lincoln’s administration the power of military commission jurisdiction, part of the administration’s controversial plan to deal with Union dissenters during the American Civil War. Justice David Davis, who delivered the majority opinion, stated that “martial rule can never exist when the courts are open” and confined martial law to areas of “military operations, where war really prevails”, and when it was a necessity to provide a substitute for a civil authority that had been overthrown.”

[12] The Supreme Court recently opined that the Japanese Exclusion was “gravely wrong” when decided and not precedent for future legal decisions.







[19] Even a “…diminished expectation of privacy does not diminish the… privacy interest in preventing a government agent from piercing the… skin. And though a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, this Court has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests…” Missouri vs McNeely, 569 US 141, 15 (2013)


4 thoughts on “Martial Law and the US Constitution…”

  1. The NCVIA should be struck down, because it violates our constitutional right to jury trial in civil matters. The Autism Omnibus Proceedings should be struck down for the same reason. Efforts to suppress so-called vaccine misinformation should be punished, because they violate our constitutional right to free speech. Shelter-in-place orders are odious because they violate our constitutional right to peaceable assembly. I think the Coronavirus scare is a hoax, and even if I’m wrong the shelter-in-place orders cause more health harm than the infection.

  2. Legal authority and common law are different. When my fellow citizens are exercising their freedoms with actions that could kill me, what can we do to stop them?

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