History

cross-posted from: https://lemm.ee/post/10945207

Long Read Review: Hitler’s American Model: The United States and the Making of Nazi Race Law by James Q. Whitman

*In Hitler’s American Model: The United States and the Making of Nazi Race Law, legal scholar James Q. Whitman examines how Nazi Germany looked to the model of the Jim Crow laws in the USA when formulating the Nuremberg Laws in the 1930s. This is a carefully researched and timely analysis of how racist ideology can penetrate the political and institutional fabric of societies, furthermore underscoring its continued impact in the USA today, writes Thomas Christie Williams. *

After the full horrors of Nazism were exposed at the end of World War II, eugenics – in Francis Galton’s words, the ‘science which deals with all influences that improve the inborn qualities of a race’ – as a social and scientific movement slowly faded from public view. The fact that Ronald Fisher, the founder of the modern discipline of genetics, and John Maynard Keynes, the economist whose ideas underpinned the New Deal, were active members of the Eugenics Society is now rarely discussed at Cambridge University, where they spent much of their academic careers. In 1954, the name of scientific journal the Annals of Eugenics was changed to the Annals of Human Genetics, and in 1965 the incoming recipient of the Chair of Eugenics at UCL, Harry Harris, became instead the Galton Professor of Human Genetics.

However, two groups of people have worked hard to keep memories of this great enthusiasm for a ‘scientific’ approach to institutionalised racism alive. The first are those who see understanding the history of the twentieth century as important, in order that we do not make the same mistakes again. They argue that whilst Nazism was the extreme end of the spectrum, it espoused views on nationality and race that were, if not mainstream, definitely recognised as acceptable by many sectors of society in Europe and the Americas. James Q. Whitman, author of Hitler’s American Model: The United States and the Making of Nazi Race Law, falls into this camp.

A legal scholar, Whitman identifies many commonalities between Nazi legislation in the early 1930s, which sought to exclude Jews from German public life, and the ‘Jim Crow’ laws enacted to exclude African Americans in the United States. Moving beyond commonalities, he argues that Nazi lawyers and the German public had a keen interest in US race law. As an example, he cites a 1936 article on racial policy in Neues Volk (New Volk), a propaganda newsletter from the National Socialist Office, which included a US map labelled ‘Statutory Restrictions on Negro Rights’, detailing disenfranchisement and anti-miscegenation laws in the 48 mainland US states.

The second group is the far-right movements arguably edging into the mainstream in the United States and Europe (in Hungary or Holland, for example). The chants of ‘Blood and Soil’ from the recent white supremacist rallies in Charlottesville, Virginia were an explicit reference to the Nazi ideal of ‘Blut und Boden’, and those gathered there are united by their fascination with fascist ideology and rhetoric. Vanguard America argues in its manifesto for an economy ‘free from the influence of international corporations, led by a rootless group of international Jews, which place profit beyond the interests of our people’. Membership of the Nationalist Socialist Movement (described on their website as ‘America’s Premier White Civil Rights Organization’) is ‘open to non-Semitic heterosexuals of European descent’, and a popular blogger for the alt-right, Mike Peinovich, who spoke at Charlottesville, hosts a chatshow entitled ‘The Daily Shoah’.

Hitler’s American Model is therefore a timely and sobering outline of how racist ideology can make its way into the political fabric of a country. It focuses on the changes introduced by Nazi lawyers post-1933, but we also learn much about how this developed in the United States. Whilst in the latter the case law excluding non-whites from public life developed over decades, in Nazi Germany the Nuremberg Laws were drafted and introduced in 1935, just two years after Hitler became Chancellor. Whitman’s main premise is that in this accelerated process, German lawyers and officials took inspiration and concrete guidance from legal practice across the Atlantic.

Reading the book, two sets of records stand out, one for their presence, and the other for their absence. The first is the stenographic report of a 5 June 1934 meeting of the Commission on Criminal Law Reform. Whitman’s twenty-page description of this transcript makes for gripping reading, and is the highlight of the book (94-113). The second is the lack of documentation regarding a September 1935 US study tour by 45 German lawyers (132). The trip was apparently a reward for their success in finalising the Nuremberg Race Laws, laid out by Hermann Göring at a rally only a few weeks earlier. As Dr. Heubner, chief of the Nazi Jurists’ Association, told the tour group before they left: ‘through this study trip the upholder of German law [will] gain the necessary compensation for an entire year of work’ (133). According to Whitman, historical record tells us that on arrival in New York at a reception organised by the New York City Bar Association, the group were met by a noisy demonstration lasting six hours and requiring police presence. However, in Whitman’s words: ‘sadly it does not seem possible to learn more about how […] the group fared on their study trip’. From the first set of records we learn much about how German lawyers saw their American counterparts; from the second (missing) set, we might have learnt more about how the American establishment viewed legal developments in the Third Reich.

Assembled at the 1934 meeting were seventeen lawyers and officials, and their brief was to respond to the demands of the Prussian Memorandum of September 1933. This document argued that the ‘task of the National Socialist State is to check the race-mixing that has been underway in Germany over the course of the centuries, and strive towards the goal of guaranteeing that Nordic blood, which is still determinative in the German people, should put its distinctive stamp on our life again’ (85). The final outcome of such meetings was the Nuremberg Laws, which consisted of three parts. The first, the Flag Law for the Reich, declared the swastika to be the only German national flag. The second, the Citizenship Laws, created a difference between German nationals – ‘any person who belongs to the mutual protection association of the German Reich’ – and the citizen – ‘a national of German blood’ who was the ‘sole bearer of full political rights’ (29). The third, the Nuremberg Blood Laws, made a criminal offence of marriage or extramarital sex between ‘Jews and nationals of German blood’ (31).

Whitman’s description of the 1934 meeting is gripping for a number of reasons. Firstly, it allows the opportunity to witness the mechanics of discrimination at work. We learn how a group of highly educated professionals – civil servants, legal academics, medical doctors – came together to formulate a set of profoundly exclusionary and undemocratic laws. The committee was faced with a number of questions. How could one define race in legal terms? Could it be possible to criminalise an act (in this case, sexual relations between a German and a Jew) to which two competent parties had consented? Secondly, as a non-American, it further underscores the deeply institutionalised discrimination within US law at this time, belying the idea that a supposedly independent judiciary can act to protect the rights of all citizens.

In Whitman’s interpretation, two groups were pitted against each other at the 1934 meeting. The first were juristic moderates, who felt that a policy of criminalising German and Jewish sexual relations was not in keeping with the German legal tradition. German criminal law, they argued, was based on clear and unambiguous concepts (105). Race, and in particular Jewishness, was difficult to ‘scientifically’ define (105); judges could not be expected to convict on the basis of vague concepts. Their adversaries were Nazi radicals, who argued that a new Criminal Code should be drawn up using the ‘fundamental principles of National Socialism’ (96). According to Whitman, it was these radicals who championed American law, already touched on in the Prussian Memorandum.

As it turns out, the American approach to defining race was not greatly troubled by the absence of a scientific conceptualisation. For the Nazi radicals, this was a heartening example. Roland Freisler, a State Secretary attached to the Ministry of Justice, pointed out: ‘How have they gone about doing this [defining race]? They have used different means. Several states have simply employed geographical concepts […] others have conflated matters, combining geographical origin with their conception of a particular circle of blood relatedness’ (107). Freisler continued:

they name the races in some more primitive way […] and therefore I am of the opinion that we can proceed with the same primitivity that is used by these American states (109).

Contrary to established German tradition, Nazi radicals believed that judges should be given freedom to institute racist legislation, without the need to come up with a scientifically satisfactory definition of race.

It is hard to argue with Whitman’s assertion that Nazi jurists and policymakers took a sustained interest in American race law, and that this helped shape the legal and political climate that led to the promulgation of the Nuremberg Laws. What Whitman moves on to in his conclusion is the extent to which the American legal and political system as a whole, beyond Jim Crow, was permeated with racism: laws related to race-based immigration, race-based citizenship and race-based anti-miscegenation. He makes the unsettling argument that America and Nazi Germany were united by a strong egalitarian, if not libertarian (in the Nazi case), ethos. This ethos, he argues, is that of all white men being equal, and thus it was not surprising that Nazism – in Whitman’s view an egalitarian social revolution for those self-defining as of German origin – turned to America for inspiration. As Whitman points out, white supremacy has a long history in the US, from 1691 when Virginia adopted the first anti-miscegenation statute, to 1790, when the First Congress opened naturalisation to ‘any alien, being a free white person’ (145), to the anti-immigration laws that followed the San Francisco Gold Rush and the segregation laws that followed the Civil War. In the wake of the Charlottesville protests, he would probably argue against Senator John McCain’s assertionthat ‘white supremacists and neo-Nazis are, by definition, opposed to American patriotism and the ideals that define us as a people and make our nation special’.

Whitman also questions whether the US common law system really serves to protect the freedom of individuals against an over-reaching state. He points out that the Nazis, rather than taking over the pre-existing German civil law system, reformed it according to a common law model. Nazi officials were given discretion to act in what they believed to be the ‘spirit of Hitler’ (149), brushing aside the legal scientific tradition of the moderates of the 1934 meeting. He argues that when it came to race, American ‘legal science’ tended to yield to American politics and left much racist legislation untouched.

So where does that leave the ‘science’ of eugenics, and the ‘legal science’ of the jurists working in a civil code system? Does a logically consistent approach of any kind protect individual liberties, or rather open up a way to discriminate based on supposedly objective measures? An important point, not explicitly made by Whitman but implicit throughout the book, is that the supposed objectivity of a scientific approach (whether in biology or the law) can easily be misused by those whose aims are clearly undemocratic and unegalitarian. On ‘The Daily Shoah’ and other racist websites, substantial discussion is devoted to ‘metrics’ related to, for example, race and IQ or sexual orientation and the chance of conviction for paedophile offences.

The Charlottesville protests were sparked by the decision to remove a statue of Robert E. Lee, a Confederate General in the Civil War: proponents of the removal argued that it served as a monument to white supremacy. Conversely, in the United Kingdom, a similar controversy surrounding a petition to remove Cecil Rhodes’s statue in Oriel College Oxford failed to lead to its removal, and the Galton Institute in London (which acknowledges its founding as the Eugenics Education Society in 1907, but disassociates itself from any interest in the theory and practice of eugenics) continues to fund research and award essay prizes on genetics for A Level students. Clearly retaining the material legacy of historical figures runs the risk of allowing their glorification (as in Charlottesville), whitewashing or suggesting implicit sanction of their actions.

However, in Whitman’s view, to try to forget or ignore these figures and their ongoing influence on society today is the more dangerous option. Hitler’s American Model is a thoughtful and carefully researched account of how the legal community in the US and Germany proved ‘incapable of staving off the dangers of the politicization of criminal law’ (159). He worries that:

the story in this book […] is not done yet […] what Roland Freisler saw, and admired, in American race law eighty years ago is still with us in the politics of American criminal justice (160).

Given recent developments in American politics, this should perhaps give us all pause for thought.

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