SEPTEMBER 3, 2017
This is one of two pieces on the question of immigration out today. To the read the other piece, click here.
IN 1925, as Adolf Hitler began to design the barbaric Nazi ideology of racial superiority in his manifesto Mein Kampf, he looked to “one state” as his model: the United States. “The racially pure and still unmixed German has risen to become master of the American continent,” he wrote, “and he will remain the master, as long as he does not fall victim to racial pollution.”
Hitler did not just see the United States as the “leader in developing explicitly racist policies of nationality and immigration” — it was his only example of a country that “already pays obeisance, at least in tentative first steps, to the characteristic völkisch [racial nationalism] conception of the state.” For Hitler, there was
currently one state in which one can observe at least weak beginnings of a better conception. This is of course not our exemplary German Republic, but the American Union, in which an effort is being made to consider the dictates of reason to at least some extent. The American Union categorically refuses the immigration of physically unhealthy elements, and simply excludes the immigration of certain races.
When Hitler came to power, Nazi lawyers, judges, and officials followed the Führer’s lead and expanded their study of systematic American racial exclusion in preparation for writing the infamous Nuremberg Laws.
James Q. Whitman, Ford Foundation Professor of Comparative and Foreign Law at Yale Law School and author of several books on criminal justice, recounts this history in his disturbing and alarming new book based on detailed and scrupulous scholarship, Hitler’s American Model: The United States and the Making of Nazi Race Law. “Awful it may be to contemplate,” Whitman concludes, “but the reality is that the Nazis took a sustained, significant, and sometimes even eager interest in the American example in race law.” Based on Nazi documents and a stenographic record of a pivotal meeting on June 5, 1934, Whitman writes that less than two years after Hitler became chancellor of the Third Reich, “it was the most radical Nazis who pushed most energetically for the exploitation of American models.” Nazi lawyers “regarded America, not without reason, as the innovative world leader in the creation of racist law.”
While Hitler’s admiration for the United States’s role in promoting the now-discredited theory eugenics has been well documented, Whitman breaks new ground by upsetting a preexisting consensus among historians who have downplayed America’s influence in the development of Nazi race law. Casting a searching and unapologetic eye on the documentary evidence, Whitman rejects the “reassuring consensus” that the United States’s legal system was insignificant in the Nazis’ quest for a legal solution to “the Jewish problem.”
At a troubling time when the United States is in the throes of a deeply divisive and ugly crisis over restrictions on immigration, exclusion of refugees, bans on travel from predominantly Muslim countries, and openly racist political rhetoric, Whitman’s chilling book forces us to examine some of the most grievous sins of America’s past through an unlikely lens.
America’s Shameful History of Race-Based Legislation
The government of the United States was founded on a document that institutionalized racism by officially perpetuating slavery. This set the stage for a wide range of race-based legislation, policies, and practices at the federal and state levels, including Indian law, anti-Chinese and -Japanese legislation, “separate but equal” segregation, Jim Crow laws, and restrictions in civil and election laws. According to Whitman, “America was particularly notable for its creation of novel forms of de facto and de jure second-class citizenship for blacks, Native Americans, Filipinos, and Puerto Ricans.” Anti-miscegenation laws were wide-spread at the state level and would not be uniformly eliminated until the 1967 US Supreme Court ruling in the aptly named decision of Loving v. Virginia.
Nazi lawyers were particularly interested in the American law of immigration, naturalization, and citizenship, and carefully studied American history. They knew that the First Congress enacted the Naturalization Act of 1790 explicitly based on race, limiting naturalization to “any alien, being a free white person.” They also knew that for the next hundred years, as one leading Nazi author put it, “a liberal freedom-oriented conception led the United States to regard itself as the refuge of all oppressed peoples.” What piqued the Nazis’ interest was the period beginning in the late 1870s. The appearance of Asian immigrants prompted California to enact Chinese exclusion laws and Congress to adopt the Chinese Exclusion Act in 1882, which was not repealed until 1943.
The Nazis were intrigued by laws like the Asiatic Barred Zone Act of 1917 that excluded anyone from a vast area of Asia as the home of “undesirables,” alongside homosexuals, idiots, and anarchists, among others, which was followed by the Emergency Quota Act of 1921 and the Immigration Act of 1924, which favored “Nordics” of northern and western Europe over the “undesirable races” of eastern and southern Europe. According to Whitman, from “the late nineteenth century onward the United States came to be regarded as ‘the leader in developing explicitly racist policies of nationality and immigration.’” Or as Theodor Fritsch, the man responsible for publishing the German editions of both the infamous Protocols of the Elders of Zion and the anti-Semitic writings of Henry Ford, put it in his Handbook of the Jewish Question (1907), “America, soaked in ideas of freedom and equality, has hitherto accorded equal rights to all races. But it finds itself compelled to revise its attitudes and its laws and create restrictions on Negroes and Chinese.”
The United States was also developing distinctive forms of second-class citizenship for non-whites, which the Nazis saw as useful precedents for designing second-class citizenship for Jews. According to Mark Mazower, author of Hitler’s Empire: How the Nazis Ruled Europe (2008), inside
the USA (whose racial laws and eugenics movement had earned Hitler’s praise in the 1920s) native Americans were viewed up to 1924 as “nationals” but not citizens — a distinction that late nineteenth-century American commentators acknowledged to be the prerogative of “a great colonial power”; Puerto Ricans were defined constitutionally much as the Germans later did the Czechs — they were “foreign to the United States in a domestic sense.”
According to Whitman’s copious research, what mattered most to Nazi observers in devising a legal system to control the Jews, were US developments in the creation of second-class forms of black citizenship. Blacks were officially denied citizenship status under the reviled 1857 Supreme Court decision in Dred Scott v. Sandford. While black citizenship was guaranteed in principle by the adoption of the Fourteenth and Fifteenth Amendments, in practice blacks “were deprived of meaningful political rights by a host of later nineteenth-century legal subterfuges, designed to evade the strictures of the post–Civil War Constitution.” The right to vote, essential to any genuine concept of citizenship, was denied to virtually all Southern blacks, as well as in states such as Connecticut and Massachusetts, by means of literacy tests and grandfather clauses (which limited voting rights to those whose ancestors had voted before emancipation). The Supreme Court routinely validated such stratagems and consequently, according to Whitman, the “net result was that American blacks, while de jure citizens, were de facto second class.”
The Nazis saw much to admire in how the United States treated its non-white populations. A “Nordic” example that Hitler encouraged Germany and the rest of Europe to follow was the American conquest of the West, where the United States had, in Hitler’s words, “gunned down the millions of Redskins to a few hundred thousand,” prompting historian Detlef Junker to conclude that for Hitler, the United States was “the model of a state organized on principles of Rasse and Raum” — that is, principles of race and the acquisition of territory for a racially defined Volk.
Whitman concludes that in “immigration and citizenship the American example served not so much as a direct template, but as welcome evidence that ‘race consciousness’ had already begun to shape the law in a leading ‘Nordic’ polity.” Consequently, “American law offered the Nazis something that matters a great deal to modern lawyers: it offered them confirmation that the winds of history were blowing in their direction.”
If this isn’t depressing enough, Whitman’s revelations about how Nazi laws prohibiting race-mixing by Jews in sex and marriage borrowed from American anti-miscegenation laws will make one’s stomach turn.
“[I]t is with the [Nuremberg] Blood Law that we discover,” writes Whitman, “the most provocative evidence of direct Nazi engagement with American legal models, and the most unsettling signs of direct influence.” Much of the United States “was infected with the same race madness” toward blacks as the Nazis exhibited toward Jews. A German writer in 1936 cited approvingly from an 1882 Alabama court decision, which held that “the mixing of the two races would create a mongrel population and a degraded civilization.” For the Nazis, the United States offered the preeminent model of anti-miscegenation legislation. Thirty states declared racially mixed marriages invalid and many made it a crime punishable by up to 10 years in prison. The historical record forces Whitman to conclude that “American mongrelization law represented, once again, the only body of foreign jurisprudence offering an extensive corpus of doctrine that Nazi policy makers found to investigate and exploit, and exploit it they did.”
Teaching By Example
On June 5, 1934, 17 Nazi lawyers, judges, professors, and officials attended a meeting of the Commission on Criminal Law Reform. A stenographic report was preserved in German archives but was not published until 1989. According to Whitman, “this pivotal meeting on the road to the Nuremberg Laws involved repeated and detailed discussion of the American example, from its very opening moments, and that American law was championed principally by the radicals.” Whitman’s vivid description of this crucial face-to-face meeting among the architects of Nazi race law, as they soberly analyze American precedents, is dramatic and startling.
After brief opening remarks by Justice Minister Franz Gürtner, the chairman of the commission, Fritz Grau, a Nazi party member who later rose to high rank in the SS, presented a staff report to address the “Jewish menace.” Proposing “an effective quarantine separating the racially foreign elements in Germany from the people of German descent,” he explicitly cited American segregation laws, urging “positive statutory measures that forbid absolutely all sexual mixing of a Jew with a German, and impose severe criminal punishment.”
Chairman Gürtner began the group discussion by displaying a Justice Ministry memorandum on “race legislation in the American states” referring to the “races that must be defended against” including “Negroes or mulattoes or Chinese or Mongols in motley variation.”
As the discussion proceeded, Karl Klee, Presiding Criminal Court Judge and professor of Criminal Law at the University of Berlin, devoted particular attention to American law as a valuable model.
American race legislation too [just like German popular attitudes] certainly does not base itself on the idea of [mere] racial difference, but, to the extent this legislation is aimed against Negroes and others, absolutely certainly on the idea of the inferiority of the other race, in the face of which the purity of the American race must be protected.
Another commission member, Roland Freisler, a dedicated Nazi lawyer who would later serve as the president of the bloody Nazi People’s Court — a “murderer in the service of Hitler,” as one biographer calls him — and participate in the infamous Wansee Conference that devised the plan to exterminate the Jews as the Final Solution, also invoked the American example. Focusing on the laws of the American states and the nature of American jurisprudence in intimate detail, he explained that “[t]hirty of the states of the Union have race legislation, which, it seems clear to me, is crafted from the point of view of race protection.” In a painfully incisive comment, he noted the “bottom line is that the Americans in reality have first and foremost desired to have race legislation, even if today they would perhaps like to pretend it is not so.”
Whitman sums up this pivotal meeting by writing that “when the leading Nazi jurists assembled in early June 1934 to debate how to institutionalize racism in the new Third Reich, they began by asking how the Americans did it.”
A key source for the Nazis was a young lawyer named Heinrich Krieger, who had just returned from Arkansas, where he had spent two semesters as an exchange student at the University of Arkansas Law School in 1933–’34. Deeply immersed in American law, he wrote an article titled “Race Law in the United States” in the journal Verwaltungsarchiv in 1934, published an English-language article in the George Washington Law Review titled “Principles of the Indian Law and the Act of June 18, 1934” in 1935, and in 1936 published his magnum opus also titled Race Law in the United States.
In his book, Krieger applauded Thomas Jefferson and the Founders for the creation of “the strongest prop for the Aryan struggle for world domination,” having previously highlighted Jefferson’s cringe-worthy 1821 declaration on the impossibility of racial co-existence: “[i]t is certain that the two races, equally free, cannot live in the same government.” Krieger also included a historically accurate account of Abraham Lincoln’s pre-1863 view that the only hope for the United States was the resettlement of the black population elsewhere, a precursor to the Nazi policy that German Jews must be driven out of the Reich. Krieger’s well-documented research would prove indispensable for the infamous Nuremberg Laws, which served the purposes of creating a new Nazi law of citizenship alongside a new law against race-mixing and intermarriage.
On September 15, 1935, at what the Nazis called the “Party Rally of Freedom,” the three notorious Nuremberg Laws — the Reich Flag Law (which enshrined the Nazi swastika as the exclusive emblem of Germany), the Reich Citizenship Law (which subjected Jews to second-class citizenship), and the Blood Law (which criminalized marriage and sexual relations between Jews and “Aryans”) — were proclaimed.
By creating a distinction between a “citizen of the Reich” (one who is “exclusively” of “German blood, or racially related blood, who demonstrates through his conduct that he is willing and suited to faithfully serve in the German Volk and Reich” and therefore “the sole bearer of full political rights”) and mere “nationals” (the category into which Jews and other undesirables were relegated), the Citizenship Law codified a combination of de jure and de facto second-class citizenship, which the United States had imposed on blacks.
In fact, the Blood Law bears the unmistakable imprimatur of American miscegenation laws to such an extent that one could substitute the term “Negroes” for “Jews”: “Marriages between Jews and nationals of German blood or racially related blood are forbidden,” and “[e]xtramarital intercourse between Jews and nationals of German blood or racially related blood is forbidden.”
The Company We Keep
At a time when our president persists in his pledge to “Make America Great Again,” one wonders what chapters in our history he wishes to exhume. Does he yearn for a return to race-based immigration and second-class citizenship? Today, many ask whether It Can Happen Here. Tragically, as Whitman’s brilliant book convincingly demonstrates, it already has. The real question is not whether It Can Happen Here but whether It Will Be Repeated Here.
Whitman regrets the “unpleasant fact” that in “the early twentieth century the United States was not just a country with racism. It was the leading racist jurisdiction — so much so that even Nazi Germany looked to America for inspiration.” The conclusion is embarrassing but unmistakable, that “American white supremacy, and to some extent Anglophone white supremacy more broadly, provided, to our collective shame, some of the working materials for the Nazism of the 1930s.”
But is our shame over the disastrous influence America had on the Third Reich almost a hundred years ago enough? Can we just close Whitman’s compelling book and move on? Is the United States today serving as a model for others around the world just as shameful as our race-based laws and policies served as a model for the Nazis?
It is now well documented that President George W. Bush authorized, and government officials and consultants engaged in, torture and cruel, inhumane and degrading treatment of scores of detainees in our custody in violation of international law. It is also well documented that President Barack Obama failed to hold Bush accountable and instead authorized extra-judicial drone attacks in various foreign countries killing Americans and other innocent civilians. President Trump has pledged to bring back waterboarding “and a hell of a lot worse” and to load up the Guantanamo prison “with some bad dudes.”
What impact have these American policies had or will they have in devaluing the adherence to humanitarian standards under international law by other countries and forces around the world? Recently, Trump extolled the “unbelievable job” President Rodrigo Duterte of the Philippines is doing in orchestrating the extra-judicial killing of thousands on the grounds of fighting a war on drugs.
In his revealing book Spiral: Trapped in the Forever War, Mark Danner describes how it is that terrorist attacks on a single day could have led a great power into the trap of endless war and how that war has degraded the country’s values together with its security. He demonstrates that “during the war on terror the United States has disappeared people and it has tortured them, with the explicit and official approval of its leaders,” and has engaged in “widespread warrantless surveillance and assassination using remotely controlled drone aircraft.” All this and more have become “permanent parts of what the country does and thus what it is.” Danner finds one of the most regrettable consequences of the war on terror “that so many Americans are now convinced that the country cannot be adequately protected without breaking the law.” Danner convincingly demonstrates that the “birth and growth of the Islamic State exemplifies a central theme of the war on terror: that across these fourteen and more years of war the United States through its own actions has done much to aid its enemies and has sometimes helped create them.”
As a candidate, Trump called for a “total and complete shutdown of Muslims entering the United States,” and labeled Mexican immigrants drug dealers and rapists. As the Trump administration takes shape, with everything from restrictions on immigration, exclusion of refugees, drastic increases in immigration arrests compared to last year, bans on travel from primarily Muslim countries, to openly bigoted political rhetoric, we must ask ourselves if the United States is once again pursuing a new racist agenda which will serve as a model for other countries and groups facing these same issues.
Speaking in Warsaw, Poland, in July, Trump assumed the mantle of the Defender of Western Civilization, invoking “the bonds of culture, faith, and tradition that make us who we are.” Attacking the “lawless savages” who threaten “civilization itself,” he proclaimed the “fundamental question of our time” as whether “the West has the will to survive.” In his words, many heard a coded message to his nativist base and like-minded nationalists around the world, which his former key advisor Stephen Bannon more openly calls “the Judeo-Christian West.”
Hitler’s American Model is a spellbinding and engrossing work of history and legal scholarship, which changes not only how we think about the Third Reich and America of the past, but also serves as a serious warning about the United States of the present and the future.