"Hitler's American Model is a breathtaking excavation of America's shameful contribution to Hitler's genocidal policies. This book is a profound testament to what the past can teach us about the present and is more timely than Whitman could possibly have imagined when he began this remarkable excursion into our nation's original sin and its surprising European legacy. A brilliant page-turner."--Laurence H. Tribe, Harvard Law School

"This is a brilliant, erudite, and disturbing book. By looking at the United States through the eyes of Nazi legal theorists in the 1930s, Whitman contributes to our understanding of this darkest chapter of German legal history. Moreover, he shines a light through this unlikely lens on the worst sins of our own country's past."--Lawrence M. Friedman, author of A History of American Law

"In Hitler's American Model, Whitman tells the deeply troubling story of how Nazi lawyers drew inspiration from the American legal system. He offers a detailed and careful reading of how U.S. immigration laws and antimiscegenation legislation gave the Nazi legal establishment the sense of remaining within the boundaries of respectable jurisprudence. Filled with novel insights, this is a particularly timely book given today's political climate."--Jan T. Gross, author of Neighbors

"This is a critical book for our difficult times. Whitman forces us to see America through Nazi eyes and to realize how profoundly white supremacy has shaped this country. Chilling in its details, the unsettling insights of Hitler's American Model jump from every page. A must-read!"--Eddie S. Glaude, author of Democracy in Black

"This is one of the most engrossing and disturbing pieces of legal history I've read in a long time. Whitman offers a sustained, systematic, and thoughtful look at how Nazi legal theorists and conservative German lawyers drew on American examples when crafting the Nuremberg laws--Germany's contribution to racial madness in the twentieth century. Whitman's book stands apart from, indeed above, everything I've read regarding America's influence on the making of the Nazi state."--Lawrence Powell, Tulane University

"This spellbinding and haunting book shatters claims that American laws related to race and segregation had little to no impact on the shaping of Nazi policies. Whitman's readings of the Nuremberg laws and Nazi legal scholarship are astonishing--nimble, sophisticated, and nuanced. Speaking volumes, this book will change the way we think about Jim Crow, Nazis, and America's role in the world."--Daniel J. Sharfstein, author of The Invisible Line: A Secret History of Race in America

Hitler's American Model

The United States and the Making of Nazi Race Law

PRINCETON UNIVERSITY PRESS

Contents

MAKING NAZI FLAGS AND NAZI CITIZENS

The racially pure and still unmixed German has risen to become master of the American continent, and he will remain the master, as long as he does not fall victim to racial pollution.

— Adolf Hitler, Mein Kampf

It is a curiosity to pick up the New York Times for September 16, 1935. The lead article for that day reported on one of darkest moments in the history of modern racism with the following headline, bolded and in large type: "REICH ADOPTS SWASTIKA AS NATION'S OFFICIAL FLAG; Hitler's Reply to 'Insult.'" This was how the Times, like most other American newspapers, reported on the promulgation, one day earlier, of the most infamous piece of race legislation of the interwar era, the Nazi Nuremberg Laws. Only below did the paper add, in less aggressive type, a reference to what we remember, and revile, about Nuremberg: "Anti-Jewish Laws Passed. Non-'Aryans' Deprived of Citizenship and Right to Intermarry." These were the measures we call "the Nuremberg Laws" today — the measures that signaled the full-scale creation of a racist state in a Germany on the road to the Holocaust. Why weren't the American headlines about them?

The answer has to do with the political genesis of the Nuremberg Laws — and it testifies to the complexity and ambivalence of relations between Nazi Germany and New Deal America in the early 1930s. There were moments, during the frightening and uncertain years from 1933 through 1936, when Nazi views of the United States were marked by anti-American resentment, hatred toward American Jews, and contempt for American constitutional values; but there were also moments when Nazis expressed hope for a future of good relations, and a belief in the kinship between the United States and Germany as countries both committed to maintaining "Nordic" supremacy.

The September 16 headlines in the American press had to do with a case of Nazi hatred toward American Jews. The Nuremberg Laws were indeed presented to the world as Nazi Germany's response to an "insult" to the swastika flag — and the "insult" in question had taken place in New York City. This was the so-called Bremen Incident of late July 1935, when rioters ripped the swastika from the German ocean liner SS Bremen. The rioters were arrested, only to be released by a Jewish magistrate named Louis Brodsky. It was in response to Brodsky's decision that the Nazis proclaimed the first of the three Nuremberg Laws, the Reich Flag Law, which enshrined the swastika as the exclusive national emblem of Germany. The triumph of the swastika in Germany can thus be said to symbolize, to some degree, the Nazi rejection of the liberal currents in American life, and of the place of Jews in American society.

But the other two Nuremberg Laws, those that deprived German Jews of the right of citizenship and the right to intermarry, the ones we remember today as the Nuremberg Laws, were different. They were not presented to the world as a rejection of America. In fact, when Hitler and Göring proclaimed the two new anti-Jewish laws at Nuremberg, they did so in speeches that were decorated with expressions of friendship toward the Roosevelt administration and the United States. And the uncomfortable truth, as we shall see in this chapter and the next, is that the two anti-Jewish measures that we call the Nuremberg Laws today, far from marking a clear German rejection of all American values, were crafted in an atmosphere of considerable interest in, and respect for, what the example of American race law had to offer; and they brought German law significantly closer in line with American law than had previously been the case.

THE FIRST NUREMBERG LAW: OF NEW YORK JEWS AND NAZI FLAGS

When we speak of the "Nuremberg Laws" today, we (like Germans of the Nazi era) refer only to the second and third out of three. These two were the Citizenship Law, which subjected Jews to a form of second-class citizenship, and the Blood Law, which criminalized marriage and sexual relations between Jews and "Aryans." Nevertheless, there were indeed three laws proclaimed at what the Nazis called the "Party Rally of Freedom" at Nuremberg on September 15, 1935; and in describing the politics of Nuremberg, and America's place in the Nazi legal mind of the early 1930s, it is appropriate to begin where the American newspapers began: with the first of them, the Reichsflaggengesetz, the Flag Law for the Reich, and the Bremen Incident that provoked it. The history of Flag Law is a window into the murky currents and countercurrents of hostility and tentative amity that characterized Nazi attitudes toward New Deal America in the early 1930s.

The Bremen Incident occurred in New York on July 26, 1935, during a hot summer marked by diplomatic clashes and street-level violence between New York opponents of Hitler and pro-German demonstrators. That evening some one thousand rioters, characterized by police reports as including "communist sympathizers," stormed the SS Bremen, one of the swiftest liners on the Atlantic and the pride of German engineering. Five of the demonstrators managed to clamber aboard, rip the swastika down, and toss it into the Hudson River.

The five were arrested, but a diplomatic crisis broke out that rumbled ominously for weeks. Immediately after the episode, the US State Department made an effort to calm the situation, sending a note expressing its regret that "the German national emblem should ... not have received the respect to which it is entitled"; whatever hostility to Hitler there may have been in the streets of New York, the administration was anxious, at this point in its history, to maintain good relations with the Third Reich. Nevertheless throughout the late summer the German press kept matters at a boil. The crisis reached its climax on September 6, a week before the opening ceremonies of the Nuremberg Rally, when Manhattan Magistrate Louis Brodsky ordered the release of the five arrested rioters, while delivering a fiery opinion denouncing Nazism in the name of American freedoms.

Louis Brodsky, the New York Jew who triggered the Nuremberg Laws, was an improbable protagonist in an international diplomatic crisis. His career was shaped by both the opportunities and the obstacles that early twentieth-century America presented to Jews. He graduated from NYU Law School in 1901, at the remarkable age of seventeen. But Jewish lawyers did not find it easy to make their way into prestigious law firms or judgeships in early twentieth-century America. It was certainly infinitely better to be a Jewish lawyer in the United States than in Nazi Germany, but it was still tough (as the Nazi literature of the early 1930s gleefully observed), and Brodsky took a different route. Through the sponsorship of Tammany Hall, the corrupt New York Democratic political machine that often promoted the interests of ethnic minorities, he landed a patronage job as a magistrate in the Lower Manhattan detention center known as the Tombs.

Tombs magistrates were very low-level judicial officers, responsible for bail hearings, night court, and the like, and a whiff of corruption often clung to Tammany appointees. (Brodsky himself survived charges of corruption in 1931.) Nevertheless Brodsky was a man who used his lowly patronage office to issue thunderous civil libertarian opinions of the kind more commonly authored by justices of the Supreme Court. Brodsky may have been a beneficiary of Tammany Hall politics, but he (like other Tammany figures) was also an ardent champion of American constitutional rights. In 1931 he stirred up a scandal by permitting the distribution of pornographic novels. In April 1935 he made headlines again when he released two nude dancers who had been arrested at a Greenwich Village club, declaring from his police court bench, heroically, that "nudity is no longer considered indecent." (On the same night another magistrate had no difficulty charging nude dancers busted at Minsky's burlesque.) And when the Bremen rioters came before him in early September, Brodsky seized on the opportunity to proclaim the values of America and denounce the Nazis. The swastika, he wrote, was a "black flag of piracy," and it stood for everything the United States opposed. To fly it was "a gratuitously brazen flaunting of an emblem which symbolizes all that is antithetical to American ideals of the God given and inalienable rights of all peoples to life, liberty and the pursuit of happiness. ... [Nazism represents] a revolt against civilization — in brief, if I may borrow a biological concept, an atavistic throwback to pre-medieval, if not barbaric, social and political conditions." These were stirring words, true in every particular; God bless Louis Brodsky for uttering them; but it is far from clear that a police court magistrate had any business issuing any such opinion, or for that matter any clear basis in law for releasing the rioters.

In any case, Brodsky was Jewish, and his opinion was bait to the Nazis. The Roosevelt administration scrambled, once again, to disavow his action. The administration pressured New York Governor Herbert Lehman to declare that Brodsky had exceeded his authority, and Secretary of State Cordell Hull issued a formal apology to the Reich on the very day that the Nuremberg Laws were proclaimed. But Minister of Propaganda Joseph Goebbels had already decided to use the Brodsky opinion for Nazi political purposes.

In fact, Brodsky's opinion was something of a propaganda gift to the Nazis: it provided them with a welcome opportunity to solidify their mastery over the Reich. Brodsky's opinion thrust him into the middle of a conflict over political symbolism in Nazi Germany. In September 1935, as the Nuremberg "Rally of Freedom" approached, the Nazi takeover of Germany was not yet symbolically complete. During the early period after Hitler's ascent to power in January 1933, the Nazi Party was forced to share authority with other right-wingers: nationalist conservatives, whose number included powerful figures such as President Paul von Hindenburg and former Chancellor Kurt von Schleicher. These were men who detested the democratic ways of the Weimar Republic, and who were willing to cooperate with the Nazis, but who maintained a degree of distance from the Nazi program. It was these nationalist conservatives who made the tragic miscalculation of placing Hitler in the Chancellorship of the Reich, confident that they could control him. As we all know, events rapidly proved them wrong: within weeks after Hitler took office on January 30, 1933, the Nazis were well on their way to full domination, in the course of the familiar nightmare sequence that marked Germany's descent into dictatorship: the Reichstag Fire of February 27, the elections of March 5, and finally the Enabling Act of March 24, which conferred dictatorial authority on Hitler.

Nevertheless, both during and after these frightening developments, Hindenburg remained President, and even after his death in the summer of 1934, nationalist conservatives retained a role in the government of the Reich. Indeed, they enjoyed an official symbolic recognition of their right to a share of power in Germany: by a special decree of President Hindenburg, issued on March 12, 1933, whereas all other nations flew only one flag, the German Reich flew two flags together — on the one hand the swastika, described in Hindenburg's decree as representing "the mighty renaissance of the German nation" achieved by Nazism, and alongside it a plain flag with black, white, and red bars, described as representing "the glorious past of the German Reich," the symbolic territory of the more traditionalist right wing. Carl Schmitt praised this peculiar two-faced national symbolism a means of "ceremoniously denying the Weimar system" without definitively raising one group of Weimar opponents over another. It conspicuously represented the limits of Nazi authority; as a matter of national symbolism, Germany was not yet Nazi Germany as long as both flags flew together; but it had the advantage of allowing the Nazis to claim the allegiance of the large numbers of German conservatives, particularly in the powerful bureaucracy, without insisting that they sign on fully to the radical Nazi program.

By September 1935 the Nazis had made great progress in ridding themselves of the nationalist conservatives — sometimes indeed by murdering them, as they did Schleicher — but they were still compelled to share the symbolic stage, with both flags hoisted irksomely together. Brodsky's decision to release the rioters gave Goebbels his opening for eliminating the nationalist conservative symbol: "The Judge Broudski in New York," he wrote in his diary, "has insulted the German national flag. ... Our answer: In Nuremberg the Reichstag will meet and declare the swastika flag to be our sole national flag." Nuremberg would symbolically mark the definitive ascent of the Nazi Party to sole rule, and it would of course also be the occasion for turning the screws on Brodsky's fellow Jews in Germany: the "Party Rally of Freedom" would also serve as the occasion for the promulgation of two anti-Jewish laws, which had already been in active preparation for more than two years.

So it was that the Nuremberg Laws were offered to the world as a "reply" to an "insult" delivered by a Jewish magistrate in a Manhattan police court. But it is important to emphasize that they were not offered as a rejection of everything America stood for. It was perfectly possible to denounce the New York Jew Louis Brodsky without denouncing America. New York City, after all, as one German author observed in a 1935 book written in praise of FDR, had very little to do with "America": New York was a place where "the representatives of the races" gathered together to create a "mishmash of ideas and people," a place marked by a "great influence of the Jews," which made institutions like Columbia University centers of "radicalism." The true America, by contrast, was Anglo-Saxon and Protestant. German racists had been saying similar derisive things about "Jewish" New York City for years.

And indeed, once the rally convened, the Nazi leadership was careful to declare that its quarrel was with the Jews, not with the United States. Hitler made a point of pausing, in his address on the new laws, to praise the Roosevelt administration for its "thoroughly decent and honorable" disavowal of Brodsky; the Nuremberg Laws, he explained, were intended simply to serve as a rebuke to "Jewish elements" everywhere, and as a confirmation of the "correctness" of National Socialism. Göring, in his own speech formally presenting the new laws, added that Germany could only express its sympathy for the American people. After all, Americans, since they did not benefit from anti-Jewish laws of their own, had been "forced to witness" the indecent display of insolence by the "uppity Jew" Brodsky.

Of course no Nazi speech should ever be taken at face value. Nevertheless the Nuremberg addresses of Hitler and Göring, with their studious effort to show respect toward the Roosevelt administration and their nasty bid for the support of American anti-Semites, fit with what we know from many other sources: in 1935 Nazi attitudes toward the United States had by no means yet hardened into unambiguous hostility, any more than Washington was yet ready to write off coexistence with Hitler. In the careful judgment of historian Philipp Gassert, for example, it was only beginning in 1936 at the very earliest, and especially in 1937, that the United States would "finally los[e] its role as a model" in Nazi Germany.

That is not to suggest that relations between the two countries were wholly harmonious in the early 1930s, or that the Nazis saw nothing to hate. It is certainly true that the American press ran many ugly stories about what was going on in Germany, and those stories certainly distressed the Nazi leadership. It is true that the Nazis abhorred the "American ideals of the God given and inalienable rights of all peoples to life, liberty and the pursuit of happiness" of which Brodsky spoke. Nevertheless, in the first years of Nazi rule there remained a widespread sense in Germany that the United States was at heart a kindred "Nordic" polity, even if it was one that remained attached to obsolete liberal and democratic forms, and one that might yet succumb to the dangers of race mixing.