From Emergency Law to Legal Process: Herbert Wechsler and the Second World War

Abstract:     
This article tells the little known story of Herbert Wechsler’s leading role as the government attorney in charge of litigating Korematsu v. United States before the Supreme Court in 1944. His service as Assistant Attorney General in charge of the War Division concluded, Wechsler returned to Columbia Law School after the war and sought on several occasions to justify his role in the Japanese-American internment. Wechsler’s wartime experience helped to shape his thinking as the most important constitutional theorist of postwar America and paved the way for certain key assumptions of the legal process school. These assumptions include: (1) the idea that a "separation of functions" is the best available mechanism in our constitutional democracy for dealing with irreconciliable differences in world view and political judgment; (2) the subordination of constitutional liberties to the discretionary power of government; and (3) the belief that legal reasoning is legitimized and ennobled through strict adherence to neutral principles. In contrast to scholars who have portrayed these tenets of the legal process school as outgrowths of the Cold War environment, we suggest that Wechsler’s fundamental legal convictions were (already) formed in the cauldron of the Second World War. The story of Wechsler and legal process after the war is, in significant measure, the story of a transformation of emergency law into peacetime jurisprudence.

Number of Pages in PDF File: 51

Keywords: Herbert Wechsler, legal process, Korematsu, Japanese-American internment, World War Two, neutral principles, constitutional law, federal jurisdiction, federal courts, emergency law, civil liberties, legal history

Accepted Paper Series