Herbert Wechsler (1909-2000) was one of the most respected and influential constitutional scholars of the twentieth century. Today he is usually remembered for his 1959 Holmes Lectures, in which he articulated the ideal of “neutral principles” in law. One of the most cited law review articles ever published, Wechsler’s plea for disinterested legal reasoning is justly famous. It was, however, only one aspect of a long and remarkable career that included such accomplishments as the first American criminal law casebook (jointly authored with Jerome Michael); stewardship of the American Law Institute’s Model Penal Code; and publication of the “Hart and Wechsler” casebook on federal jurisdiction, which has been described as “probably the most important and influential casebook ever written.” One aspect of Wechsler’s career, however, remains particularly unknown to students of the law and to historians: Wechsler’s role as Assistant Attorney General in charge of the Justice Department’s War Division towards the end of World War II. During this time, Wechsler oversaw the government’s argument in the 1944 case of Korematsu v. United States, which affirmed the U.S. government’s power to exclude citizens of Japanese ancestry from military zones.
It is the wartime dimensions of Wechsler’s career that we focus on in this essay. We do so with a number of goals in mind. The first is simply to tell the story of the prominent role that Wechsler played in a case “steeped in infamy,” a case that upheld a policy of discrimination based explicitly on racial grounds, a case that has become the very paradigm of non-neutral Supreme Court decision-making.
The second goal is to highlight Wechsler’s earnest efforts after the war to justify his role in Korematsu. These efforts include some of his better-known writings, such as the Neutral Principles essay, but also an important and neglected address he delivered to the Institute for Religious and Social Studies of the Jewish Theological Seminary of America in the winter of 1955. This address was later published in 1957 in a volume entitled Integrity and Compromise: Problems of Public and Private Conscience. . . .