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

51 Pages Posted: 11 Nov 2010 Last revised: 7 Sep 2011

See all articles by Malick W. Ghachem

Malick W. Ghachem

Massachusetts Institute of Technology; University of Maine School of Law

Daniel Gordon

University of Massachusetts Amherst

Date Written: January 1, 2007


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.

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

Suggested Citation

Ghachem, Malick W. and Gordon, Daniel, From Emergency Law to Legal Process: Herbert Wechsler and the Second World War (January 1, 2007). Suffolk University Law Review, Vol. 40, No. 2, 2007, Available at SSRN:

Malick W. Ghachem (Contact Author)

Massachusetts Institute of Technology ( email )

United States
617-324-7284 (Phone)


University of Maine School of Law ( email )

246 Deering Avenue
Portland, ME 04102
United States


Daniel Gordon

University of Massachusetts Amherst ( email )

Department of Operations and Information Managemen
Amherst, MA 01003
United States

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