Racism Comes Full Circle: America as the Harbinger of the Nazis’ Race Laws

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Demonstrators carry confederate and Nazi flags during the Unite the Right free speech rally at Emancipation Park in Charlottesville, Virginia, USA on August 12, 2017.
Demonstrators carry confederate and Nazi flags during the Unite the Right free speech rally at Emancipation Park in Charlottesville, Virginia, USA on August 12, 2017. Credit: Emily Molli / NurPhoto
Oded Heilbronner
Oded Heilbronner
Oded Heilbronner
Oded Heilbronner

"Hitler's American Model: The United States and the Making of Nazi Race Law," by James Q. Whitman, Princeton University Press, 224 pages, $24.95.

A sign photographed in 1943 at the Greyhound bus station, Rome GA, United States.Credit: Esther Bubley

A recent study has joined the constant flow of research on the Third Reich, an original work that sheds more light on a subject we thought we knew everything about: Nazi racism. It’s a subject all the more current after the events in Charlottesville, Virginia, over the weekend.

Countless books have been written on the sources of Nazi racism. Some reconstruct 500 years of German history, since the days of Martin Luther, and find the source of the Nazis’ murderous worldview. Others see Nazi ideology as a historical accident whose roots are to be found only in the few years before the rise of the Third Reich.

'For Nazis of the early 1930s, even radical ones, American race law sometimes looked too racist,' Whitman writes

>>Learn from the 1930s: American Nazis aren't inherently powerful, but are emboldened by fear | Opinion

Others invoke European contexts: the Eastern European or French anti-Semitism on the eve of the 20th century, and the Communist revolution, whose shock waves included murderous anti-Semitism in Europe. We also must not ignore the biographical-psychological studies that focus on the pathological anti-Semitism developed by the Nazis, with Hitler at their head.

The unique work of Prof. James Q. Whitman of Yale Law School, whose previous book explored the growing divide between criminal law and punishment in America compared to Europe, belongs to a long series of research noting the global contexts in which decisions are made and events occurred both regionally and domestically.

In this 1939 photo a man is seen drinking next to a "colored" drinking fountain in Oklahoma City, Oklahoma.Credit: Russell Lee
In this 1939 photo, a sign in a park in Kraków, Poland, forbids the entry of Jews.

Such global history has already shown us that the roots of local conflicts in Europe, the Middle East or Asia in the 20th century were in climactic, religious and global economic processes, amid the mutual influence among countries and economies and the processes dismantling the European empires. Whitman says that we must understand the Nuremberg race laws in this context, and that their inspiration came from the other side of the Atlantic.

A sign marking the entrance to the colored area at the Montpelier Train Depot segregation exhibit in Orange, Va.Credit: Steve Helber / AP
The cover of "Hitler’s American Model: The United States and the Making of Nazi Race Law,” by James Q. Whitman

Whitman’s book isn’t world history at its finest, and his training as a professor of international law may have prevented him from understanding the complexity in global and local historical research. But this doesn’t keep him from claiming that in the 1920s and the early years of the Third Reich, the heads of the Nazi party, including lawyers and academics, expressed great interest in the racist Jim Crow legislation against blacks in the United States, and apparently drew inspiration from it. Whitman tries to reconstruct this unknown history and draw conclusions from it about Nazi anti-Semitism, racism and the United States itself.

The Nazi leaders, including Hitler, never hid their admiration for the American knack for invention, industrial and cultural entrepreneurship, music and Hollywood movies

We should always be grateful for research whose source is a lower-profile historical discipline that can present additional dimensions of a well-worn picture. As a legal scholar, Whitman tends to emphasize the sides unseen by historians and cultural scholars, or which have been diverted to the margins of their work because of their unsuitability for the recognized models. For example, the “mirror image” that Whitman uses is taken from the legal world. It describes the comparison between Nazi Germany and the American South in the 1930s. This image doesn’t match the stereotypes of Nazism as the embodiment of evil, and of the United States as the cradle of democracy, freedom and liberal legislation.

The accepted assumption is that Nazism was the creator and master of the murderous enterprise, while the United States went to war to destroy it. Given such traditional impressions, Whitman tries to show that the racist legal activities against blacks in the United States, mostly in the South, provided inspiration for the Nazis, though they didn’t influence the German anti-Jewish legislation.

Whitman argues with legal historians who examined these aspects; he says they asked the wrong questions. They busied themselves with the question of how much the Nazis learned from the racist legislation in America and how much they copied it. In comparison, Whitman examines how much the Nazis showed interest in racial laws in America and the extent these laws served as an inspiration. He says Nazi lawyers thought America was the world leader is racist legislation.

Bernhard LösenerCredit: ullstein bild / ullstein bild vi
Franz GürtnerCredit: Heinscher / Bundesarchiv

“Moreover, the ironic truth is that when Nazis rejected the American example, it was sometimes because they thought that American practices were overly harsh: for Nazis of the early 1930s, even radical ones, American race law sometimes looked too racist,” Whitman writes in the book’s introduction.

A collection of racist material is housed in Big Rapids, Mich., at Ferris State's Jim Crow Museum of Racist Memorabilia.Credit: JIM PRICHARD / ASSOCIATED PRESS
Sign on a restaurant: "We Cater to White Trade only," taken in 1938 in Lancaster, Ohio.Credit: Ben Shahn

Whitman writes, justifiably, that the idea that American racial laws aroused interest among the Nazis, and even provided them with inspiration, sounds scandalous. But he bases his central claim on research from recent years, which shows that similar to other countries, Nazi Germany saw the United States as the rising world power.

In a number of areas, the Nazis even admired America, at least until the beginning of World War II. The Nazi leaders, including Hitler, never hid their admiration for the American knack for invention, industrial and cultural entrepreneurship, music and Hollywood movies. (But they recoiled from black music and jazz.) Whitman notes that despite their criticism of Franklin Roosevelt and his democratic leadership style – he quotes the Hitler Youth newsletter, which said Roosevelt “might fail only because he lacked ‘a disciplined Party army like our Führer’” – the New Deal was studied in Nazi Germany.

‘The Passing of the Great Race’

Whitman shows how the American plans for racial improvement and euthanasia were also studied in Germany even before the Nazis gained power, and even more so afterwards. He describes the unending flow of ideas from both sides of the Atlantic, and mutual visits and conferences of German and American scholars  in which the Americans learned quite a bit from their German colleagues.

The traditional study of Nazi racism is aware of the great influence the books by European racists such as Count Joseph Arthur de Gobineau, Houston Stewart Chamberlain and Francis Galton had on Nazi ideology. Whitman draws our attention to the views of the American historian Lothrop Stoddard and the 1916 book by the New York lawyer Madison Grant, “The Passing of the Great Race: Or, The Racial Basis of European History.” This work was studied in Germany. Grant developed the theory that to improve the white race in America, migrants with genetic flaws should be encouraged to undergo sterilization.

The book is just one example of the global history of the idea that the mentally and physically disabled should be sterilized and euthanized, along with other practices to implement racial purity. Other American works that promoted these ideas made waves outside the Anglo-American world, including in Germany.

Whitman also describes the Nazis’ admiration, once again including Hitler, for America’s westward expansion. Influenced by the provocative 2015 book “Black Earth” by fellow Yale professor Timothy Snyder, and by many other books that stress the influence of America’s westward expansion on other European countries, movements and ideas, Whitman says the Nazi principle of Lebensraum in Eastern Europe and the destruction of the Slavic peoples were very much influenced by the American experience. According to Whitman, in the Nazis’ eyes, the United States and Britain were countries that built racist empires. The Nazis viewed both countries as Nordic empires and polities, racial kin who had undertaken epic programs of occupation and destruction.

This is why Whitman says that in addition to carefully studying the mass production of cars by Henry Ford, the Hollywood film market, Roosevelt’s style of government, American sterilization programs and westward expansion, the Nazis also studied – and in particular the Third Reich’s legal system studied –  the Jim Crow laws, the racist legislation in the South, and the way they were implemented.

Hans KehrlCredit: Bundesarchiv
Roland FreislerCredit: Heinscher / Bundesarchiv

Whitman is careful to note that although the Nazis drew inspiration from the United States, the Third Reich had its own way of viewing America’s racist legislation. Here is where we reach the heart of Whitman’s scholarship. He claims that it wasn’t the separation of races that was at the center of Nazi considerations. The Jim Crow laws were carefully studied by German and Nazi legal experts, but the questions that really interested them centered around citizenship, sex and reproduction.

American precedents, which were meant to make African-Americans, Chinese and Filipinos second-class citizens, provided inspiration for the Nazis

Based on a long series of modern studies, Whitman says the Nuremberg Laws were crafted so as to create citizenship laws based on racial categories. The main motive for the legislation was to prevent mixed marriages, which would lead to the birth of mixed-race children and “racial pollution.” At the center of the debate that preceded the Nuremberg Laws was the aspiration to construct a legal code that would prevent such situations. American precedents, which were meant to make African-Americans, Chinese and Filipinos second-class citizens, provided inspiration for the Nazis.

As a scholar specializing in comparative law, Whitman stresses various legal interpretations for the words “influence” and “inspiration,” which he uses many times in his book. He claims that the term “influence” does not mean only “verbatim borrowing.” In international law, influence is a complicated process that includes “translation, creative adaptation, selective borrowing, and invocation of authority.”

Everyone borrows from everyone else, all borrowing begins with a foreign model, and at the end of the process a suitable model for the borrower’s unique needs is constructed. Whitman calls this complex process “inspiration.” This is how the Nuremberg Laws were created, he says.

Whitman, correctly, summarizes his claims by saying the legislation against blacks and foreigners in the United States didn’t also have to be directed against the Jews for us to learn about the inspiration it provided to the Nazis, and the Nuremberg Laws weren’t a preliminary step to the gas chambers.

These claims are based in particular on a long debate in various memos written in the Prussian interior and justice ministries in 1933, the year the Nazis came to power. Whitman delves deeply into the struggles among Prussian Nazi officials – who nonetheless were conservatives – such as Franz Gürtner, the Reich’s justice minister, and Bernhard Lösener, one of the main draftsmen of the Nuremberg Laws, who said in 1933 that foreign racial models looked quite attractive. On the other side were radical Nazis such as Hans Kehrl and Prussian Justice Minister Roland Freisler, later president of the Nazi People’s Court “and a man whose name has endured as a byword for twentieth-century judicial savagery.” Freisler is the judge who sentenced the plotters to death in the failed 1944 assassination attempt against Hitler, and he attended the Wansee Conference in 1942.

White nationalist demonstrators use shields as they guard the entrance to Lee Park in Charlottesville.Credit: Steve Helber/AP

Don’t forget Germany in Africa

Freisler is shown to be an enthusiastic fan of the United States. In the early days of the Third Reich he “declared that the American approach would ‘suit us perfectly.’” Whitman examines the changes made in the various documents to create a new Nazi criminal code under the influence of the Jim Crow laws. The arguments focused on the radical Nazis’ desires to add three racial laws to the German criminal code: The racial treason law, the racial dishonor law and the law on threats to the race. German lawyers and legal officials who studied the United States or were sent there to see U.S. racial legislation up close adapted the American laws for Nazi Germany.

Whitman’s approach has a few points that deserve criticism. First, he does not always distinguish between aspirations and reality. It’s not always clear from his book what the Nazis expected to find in American racial laws, what the situation really was in the southern United States, and to what extent the Germans understood that reality. The book is missing a chapter on such questions.

Second, as an American legal scholar, Whitman ignores a number of recent historical studies that say the Nuremberg Laws found their inspiration not necessarily in the United States, but from Germany itself, especially pre-World War I Germany’s relationship with the blacks in its African colonies.    

In addition, the overreliance on legal memoranda marginalizes the examination of relations between Germans and Jews in the Nazis’ first years in towns and villages in the country’s outskirts. Such relations did not always match the directions the Nazi Party’s radical wings desired.

Whitman does not discuss the important research by Michael Wildt, who has shown how the racist radicalism that led to the Nuremberg Laws stemmed from disorder, uncontrolled violence and confusion at the lowest levels of the Nazi Party. These lowest levels misunderstood the new regime’s wishes concerning the expulsion of Jews, while the traditional good relations between Jews and Germans outside the main cities continued. This situation created a need to construct a system of laws to clarify the place of the Jews, and this is what gave birth to the Nuremberg Laws.

In the end, the United States is at the center of Whitman’s work, but I wonder what would have happened if he had focused on the British and their attitude to others, both in the empire and at home, and the laws Britain enacted to limit such people’s movement. It is known that in addition to the Nazi admiration for the United States (a very limited admiration, but Whitman isn’t always careful to note this), many Germans and Nazis looked to the British Empire, which many of them admired more than the United States. Britain’s methods in its colonies, in India especially, were carefully studied by various Nazi elites. It would be interesting to know if Whitman would have reached similar conclusions if he had chosen a different subject for his research such as Britain.

Despite all these reservations, Whitman deserves thanks for his apparently groundbreaking work. Because of current developments in the United States, we can only agree with his conclusion that even though America’s racist legislation didn’t view the Jews as the supreme enemy, and in the end there were no gas chambers in America, the way the Nazis learned a chapter in racial law from the United States “has to be a part of our national narrative,” as Whitman writes.