Hitler's American Model: The United States and the Making of Nazi Race Law Hardcover – February 21, 2017

The author, Professor of Comparative and Foreign Law at the Yale Law School, tells us in the Acknowledgments that Princeton U. Press received from some of its referees "suitably bilious responses", validating his decision to bypass commercial publishers. Still, James Q. Whitman assures us time and again that he has nothing nefarious in mind, that Hitler's extermination ideology was not made in the USA, as the title may suggest. Instead, he brings to light the keen scholarly interest nationalist and Nazi German jurists took in contemporary American race legislation and Jim Crow practices. By separating the racist dimension of the "American Legal Realism" of the 1930s from its larger liberal context, Whitman arrives at the true nexus with its German counterpart. The " 'realists' of both countries shared the same eagerness to smash the obstacles that 'formalistic' legal science put in the way of 'life' and politics - and 'life' in both New Deal America and Nazi Germany did not include only economic programs (...). 'Life' also involved racism." (p. 156) The author's familiarity with both, the German and American legal landscapes of the 1930s and 40s and his painstakingly sober analysis, assure this reader that the book is exactly NOT "spellbinding and haunting", as one dust-cover reviewer sees it.

The topic could be embedded in the larger history of the American eugenics movement, so carefully illuminated by Christine Rosen (Preaching Eugenics (Oxford, 2004) who cites this opinion of the great Oliver Wendell Holmes, abbreviated in our book: "It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. Three generations of imbeciles are enough." (p.150)

As contemporaries of the Trump era, we may want to stop and reflect on Whitman's somber conclusion "(...) To have a common-law system like that of America is to have a system in which the traditions of the law do indeed have litte power to ride herd on the demands of the politicians, and when the politics is bad, the law can be very bad indeed." (p.159) Professor Whitman summarizes his interpretation of recent literature that support his thesis as follows: "All of these works paint a darker picture of early twentieth-century American intellectual and political life than we might wish. So does this book." Makes it a timely one, doesn't it ?

James Q. Whitman's new book is called Hitler's American Model: The United States and the Making of Nazi Race Law. It is understated and overdocumented, difficult to argue with. No doubt some will try.

In cartoonish U.S. historical understanding, the United States is, was, and ever shall be a force for good, whereas Nazism arose in a distant, isolated land that lacked any connection to other societies. In a cartoonish reversal of that understanding that would make a good strawman for critics of this book, U.S. policies have been identical to Nazism which simply copied them. Obviously this is not the case.

In reality, as we have long known, the U.S. genocide of Native Americans was a source of inspiration in Nazi discussions of expanding to their east, even referring to Ukrainian Jews as "Indians." Camps for Native Americans helped inspire camps for Jews. Anti-Semites and eugenicists and racists in the U.S. helped inspire those in Germany, and vice versa. U.S. bankers invested in the Nazis. U.S. weapons dealers armed them. Nazis borrowed from U.S. propaganda techniques developed in World War I. Admirers in the U.S. of Nazi Germany and fascist Italy attempted at least one coup against President Franklin Roosevelt. The U.S. refused to admit significant numbers of Jewish refugees or to help evacuate them from Germany. The State Department turned down Anne Frank's visa. The coast guard chased a ship of Jews away, sending them back to their fate. Et cetera. We have known all of this.

We have known how the U.S. treated African Americans, Japanese Americans, and others at the time of World War II, how it experimented on Guatemalans even during the trials of Nazis for human experimentation, and continued to allow human experimentation in the U.S. for many years. And so forth. The good versus evil cartoon was never real.

What Whitman's book adds to the complex story is an understanding of U.S. influences on the drafting of Nazi race laws. No, there were no U.S. laws in the 1930s establishing mass murder by poison gas in concentration camps. But neither were the Nazis looking for such laws. Nazis lawyers were looking for models of functioning laws on race, laws that effectively defined race in some way despite the obvious scientific difficulties, laws that restricted immigration, citizenship rights, and inter-racial marriage. In the early 20th century the recognized world leader in such things was the United States.

Whitman quotes from the transcripts of Nazi meetings, internal documents, and published articles and books. There is no doubt of the role that U.S. (state, not just federal) legal models played in the development of the Nuremberg Laws. The 1930s was a time, we should recall, when Jews in Germany and primarily African Americans in the United States were lynched. It was also a time when U.S. immigration laws used national origin as a means of discrimination -- something Adolf Hitler praised in Mein Kampf. It was a time of de facto second-class citizenship in the United States for blacks, Chinese, Filipinos, Puerto Ricans, Japanese, and others. Thirty U.S. states had systems of laws banning interracial marriage of various sorts -- something the Nazis could find nowhere else and studied in comprehensive detail, among other things for the examples of how the races were defined. The U.S. had also shown how to conquer territories of undesirables, such as in the Philippines or Puerto Rico, and incorporate them into an empire but not give first-class citizenship rights to the residents. Up until 1930 a U.S. woman could lose her citizenship if she married a non-citizen Asian man.

The most radical of the Nazis, not the moderates, in their deliberations were the advocates for the U.S. models. But even they believed some of the U.S. systems simply went too far. The "one-drop" rule for defining a colored person was considered too harsh, for example, as opposed to defining a Jew as someone with three or more Jewish grandparents (how those grandparents were defined as Jewish is another matter; it was the willingness to ignore logic and science in all such laws that was most of the attraction). The Nazis also defined as Jewish someone with only two Jewish grandparents who met other criteria. In this broadening the definition of a race to things like behavior and appearance, the U.S. laws were also a model.

One of many U.S. state laws that Nazis examined was this from Maryland:

"All marriages between a white person and a Negro, or between a white person and a person of Negro descent, to the third generation, inclusive, or between a white person and a member of the Malay race or between a Negro and a member of the Malay race, or between a person of Negro descent to the third generation, inclusive, and a member of the Malay race . . . [skipping over many variations] . . . are forever prohibited . . . punished by imprisonment in the penitentiary for not less than eighteen months nor more than ten years."

The Nazis of course examined and admired the Jim Crow laws of segregation as well but determined that such a regime would only work against an impoverished oppressed group. German Jews, they reasoned, were too rich and powerful to be segregated. Some of the Nazi lawyers in the 1930s, before Nazi policy had become mass murder, also found the extent of the U.S. segregation laws too extreme. But Nazis admired racist statements from contemporary U.S. pundits and authorities back at least to Thomas Jefferson. Some argued that because segregation was de facto established in the U.S. South despite a Constitution mandating equality, this proved that segregation was a powerful, natural, and inevitable force. In other words, U.S. practice allowed Nazis to more easily think of their own desired practices in the early years of their madness as normal.

In 1935, a week after Hitler had proclaimed the Nuremberg Laws, a group of Nazi lawyers sailed to New York to study U.S. law. There, they were protested by Jews but hosted by the New York City Bar Association.

U.S. laws on miscegenation lasted, of course, until the 1967 Loving v. Virginia ruling. Vicious and bigoted U.S. policies on immigration and refugees are alive and well today. Whitman examines the U.S. legal tradition, noting much that is to admire in it, but pointing to its political or democratic nature as something that the Nazis found preferable to the inflexibility of an independent judiciary. To this day, the U.S. elects prosecutors, imposes Nazi-like habitual offender (or three-strikes-you're-out) sentences, uses the death penalty, employs jailhouse snitches' testimony in exchange for release, locks up more people than anywhere else on earth, and does so in an extremely racist manner. To this day, racism is alive in U.S. politics. What right-wing dictators admire in Donald Trump's nation is not all new and not all different from what fascists admired 80 or 90 years ago.

It's worth repeating the obvious: the United States was not and is not Nazi Germany. And that is a very good thing. But what if a Wall Street coup had succeeded? What if the United States had been bombed flat and faced defeat from abroad while demonizing a domestic scapegoat? Who can really say it couldn't have or still couldn't happen here?

Whitman suggests that Germans do not write about foreign influence on Nazism so as not to appear to be shifting blame. For similar reasons many Germans refuse to oppose the slaughter of and mistreatment of Palestinians. We can fault such positions as going overboard. But why is it that U.S. writers rarely write about U.S. influence on Nazism? Why, for that matter, do we not learn about U.S. crimes in the way that Germans learn about German crimes? It seems to me that it is U.S. culture that has gone the furthest overboard into a sea of denial and self-idolatry.

This is a brilliant study. Just one opening observation is that the reader will learn as much about American legal history as the German NAZI legalisms.

The publisher selected title is unfortunate, to say the least. Professor Whitman is not suggesting that American racism, or religious bigotry was a direct inspiration for Nazi race theory, or anti-Semitic bigotry. Nor, as some have suggested, was the American eugenics movement. Eugenics was just a tiny part of the Nazi situation. Stefan Küehl has attributed a larger part to eugenics than anyone I can think of in his 2002 book The Nazi Connection: Eugenics, American Racism, and German National Socialism (Oxford University Press).

In fact, the Nazi "Rassen Pope" Alfred Poletz among others was influential in the 1905 founding of the Society for Racial Hygiene (Gesellschaft für Rassenhygiene). Poletz was a believer in Nordic superiority, and he quickly formed a secret group of racists active within the Society. They were strongly influenced by the racial theories of Arthur Comte de Gobineau published in the early 1850s (well before Darwin's books, or the even later Eugenics movement). Gobineau followed the creationist theories of the "pre-Adamites" who went so far as to claim that Negroes had been created on the Genesis fifth day with "other beasts of the field."

(More to follow)

One scary little book. I knew some of this, but never saw it all laid out and carefully analyzed before. The book is authoritative and very well written. Very well documented.