How America Came to Live Under a Martial Law of Defaults (The Great Normalization)
Congress has never defined martial law. The Constitution omits the phrase, the statute books carry no section under that heading, and two centuries of litigation have produced descriptions of what the condition is not while leaving what it is almost entirely unsettled. What the case law does supply is a test, and the test has been geographic and temporal from the beginning: martial law belongs to the theatre of actual war, it operates while the courts are shut and their process obstructed, and it lifts once the shooting stops and the judges return. Andrew Jackson imposed it on New Orleans in December 1814 with the British eleven miles downriver, jailed a federal district judge who dared issue a writ against him, and raised it again in March. Abraham Lincoln let a military commission try civilians in Indiana in 1864, and Ex parte Milligan struck the arrangement down two years later on the ground that where civil courts stand open and functioning their authority cannot be displaced. Haw...