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January 1 - January 17, 2021
American racism has climbed back up out of the gutter and into national politics.
The relevant questions are no different today from what they were in the early 1930s.
The supremacy of the rule of law was abandoned during the high era of American race law, just as it was abandoned in Nazi Germany, and we ought to tremble when we see it creaking and shuddering in 2018.
in Mein Kampf Hitler praised America as nothing less than “the one state” that had made progress toward the creation of a healthy racist order
In the 1930s Nazi Germany and the American South had the look, in the words of two southern historians, of a “mirror image”:1 these were two unapologetically racist regimes, unmatched in their pitilessness.
for Nazis of the early 1930s, even radical ones, American race law sometimes looked too racist.
Nazi observers were particularly hopeful that they could “reach out the hand of friendship” to the United States on the basis of a shared commitment to white supremacy.
the American president was a committed democrat, who preserved American constitutional government at a time when it was under ominous stress.
The Nuremberg Laws said nothing about segregation.
In the 1930s the United States, as the Nazis frequently noted, stood at the forefront of race-based lawmaking.
None of this is entirely easy to talk about.
Contemporary Germany rests on the moral foundation not only of the repudiation of Nazism, but also of the refusal to deny German responsibility for what happened under Hitler.
We can, and should, reject the sort of simple-minded anti-Americanism that blames the United States for all the evils of the world, or reduces America to nothing but its history of racism.
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.
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:
The true America, by contrast, was Anglo-Saxon and Protestant.
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.
When Nazi observers looked out on early New Deal America, they saw a country where white supremacy ran deep, at least once the visitor left New York City behind.
citizenship and miscegenation were both central to American interwar race law. Segregation was only a part of it.
British imperialism deposited a network of “free white men’s democracies” around the globe, displaying a common commitment to maintaining what Columbia professor J. W. Burgess influentially praised in 1890 as “ethnically homogeneous” states.
the American Union feels itself to be a Nordic-German state and by no means an international Völker-porridge
the hope of a spiritual alliance between Nazi Germany and the white supremacist United States was not to be excluded.
The Nazis were drawing on practices that had developed in the broader historically British world, not just in the United States.
The American knows very well who has made his land great. He sees that the Nordic blood is drying up, and seeks to refresh that blood through his immigration legislation.
American citizenship law, with its creation of de jure and de facto forms of second-class citizenship for blacks, Puerto Ricans, Filipinos, Chinese, and Native Americans.
the South, through its systematic deprivation of the voting rights of blacks (and Mexicans and Native Americans),186 had embarked on the creation of something that looked unmistakably like the American version of a race-based fascist order.
American race-based immigration and citizenship law did in fact set the standard in the early twentieth century.
Even a thoroughly race-obsessed country like Australia in the era of the “White Australia” policy did not follow America’s menacing lead.
Nazis lawyers, even radical ones, found American law on mongrelization too harsh to be embraced by the Third Reich.
Nazi racists, unlike the racists in the American South, understood persecution to be the task for “the centralized organization of a fascist state,”34 and popular lynch justice did not fit in.
It is a major episode in modern legal history—a test case for how legal traditions could operate to impose limits during the descent into Nazism.
they defended the traditional doctrines of the law, insisting that the Nazi program of persecution conform to the logic and strictures of the highly developed “legal science” for which Germany was famous.
how juristic conservatism could work as a brake on Nazi radicalism.
American anti-miscegenation law was very old, dating back to a pioneering Virginia statute of 1691.
late nineteenth- and early twentieth-century America struck Germans as a country at the forefront of the creation of “a conscious unity of the white race.”
what the American example showed was that true race-based criminal law ought to be unapologetically racist criminal law.
it displayed an ideological determination to build a racist order even in the face of the absence of any meaningful scientific conception of race,
American courts did not allow themselves to be hobbled by some pedantic insistence on clear and juristically or scientifically defensible concepts of race.
American law was torn between two “shaping forces”: formalistic liberal egalitarianism and realistic racism.
the USA must be characterized as entirely liberal and democratic. With an ideology of that kind, which starts from the fundamental proposition of the equality of everything that bears a human countenance, it is all the more astonishing how extensive race legislation is in the USA.
more examples of Nazi authors who thought American law went overboard.
the necessity of segregating humans according to their racial descent makes itself felt even where a political ideology stands in the way—a political ideology that denies that human beings have different worth depending on their descent.
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.
American white supremacy too was founded in a “resolute egalitarianism among white men”;28 it was a movement that affirmed the equality of every member of the favored race, while forcefully rejecting the status inequalities of the aristocratic past. Such was the nature of Jacksonian democracy in particular.
American legal history of the decades after 1877 is a largely unrelieved record of shameful evasion of the principle of equality that the Reconstruction Amendments were supposed to enshrine
there was always a tension between two racial orders in America, a “white supremacist order” and an “egalitarian transformative order.”
There was American, and more broadly Anglophone, racism in the background to the Nazi movement, but the Nazis brought something different: the “organization of a fascist state.”
If they denied the liberty of the ordinary German citizen, they frequently insisted on a kind of liberty for the individual Nazi official to act independently “in the spirit of Hitler.” That is indeed a part of what made Nazism so terrifying.
Freisler was drawn to American jurisprudence precisely because it was not hobbled by this sort of “outdated” respect for legal science and juristic tradition; and that ought to be enough to raise doubts in our minds about whether common-law liberty offers the best defense against tyranny
an America where politics was comparatively unencumbered by law.
