14TH AMENDMENT

The Fourteenth Amendment addresses many aspects of citizenship and the rights of citizens. The most commonly used -- and frequently litigated -- phrase in the amendment is "equal protection of the laws", which figures prominently in a wide variety of landmark cases, including Brown v. Board of Education (racial discrimination), Roe v. Wade (reproductive rights), Bush v.

Gore (election recounts), Reed v. Reed (gender discrimination), and University of California v. Bakke (racial quotas in education). See more...

Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The suspension of regular government and habeas corpus or the reliance of military law enforcement.

Temporary military takeover of law enforcement. Under martial law, within the affected territory, the will and decisions of the commanding military officer take precedence.

The state of martial law is anticipated always to be temporary. It is not declared by the judiciary (aka the judicial branch of government) but by the executive branch of government.

This extraordinary state of affairs is taken in extraordinary circumstances only (natural disaster, invasion, civil war, etc.) and in accordance with constitutional common law or a written constitution or a statute. The justice system is, in whole or in part, suspended by the government's announcement of martial law.

"Martial law is the will of the commanding officer of an armed force," wrote, bluntly, the US Supreme Court in Ex Parte Milligan 71 US 2 (1866), "or of a geographical military department, expressed in time of war within the limits of his military jurisdiction, as necessity demands and prudence dictates, restrained or enlarged by the orders of his military chief, or supreme executive ruler."

It has been said that during martial law, the military commander is "legislator, judge and executioner".

Suspension of habeas corpus, of ordinary law and due process of government in a time of military crisis or imminent danger to the state such as invasion or insurrection, are all legal features of martial law.

As Jeremy Bentham wrote in 1789 (Principles of Legislation):

"When security and equality are in conflict, it will not do to hesitate a moment. Equality must yield."

Martial law is usually accompanied by the replacement of government services and regular police forces by the military during the crisis.

The US Constitution at Article 1, ¶9 states:

"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."

Some jurists claim that the martial law is an oxymoron and ought not to be called law at all as it is the antithesis to it, vesting as it were many of the functions of government to an unelected military commander.

An ancient legal, Latin maxim rings true: silent enim leges inter arma: the laws are silent amidst the clash of arms.

As Sir Matthew Hale wrote in History of the Common Law:

"In truth and reality it is not a law, but something indulged rather than allowed as a law."

And this from Sir James Mackintosh in Mackintosh's Miscellaneous Works, London edition, 1851:

"The only principle on which the law of England tolerates what is called martial law, is necessity. Its introduction can be justified only by necessity; its continuance requires precisely the same justification of necessity; and if it survives the necessity, in which alone it rests, for a single minute, it becomes instantly a mere exercise of lawless violence.

"When foreign invasion or civil war renders it impossible for courts of law to sit, or to enforce the execution of their judgments, it becomes necessary to find some rude substitute for them, and to employ for that purpose the military, which is the only remaining force in the community.

"While the laws are silenced by the noise of arms, the rulers of the armed force must punish, as equitably as they can, those crimes which threaten their own safety and that of society, but no longer; every moment beyond is usurpation. As soon as the laws can act, every other mode of punishing supposed crimes is itself an enormous crime."

In each jurisdiction, particularly those that have had to deal with insurrection or war, case law has developed to attempt to contain the military powers in times of martial law.

For example, in Ex Parte Milligan:

"If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substituted for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course.

"As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power.

"Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."