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March 25 - April 2, 2019
But as Edmund Morgan famously argued in American Slavery,
It is hard to get people to admit that they are all equal. One prime way of doing it, as we all know, is to get them to unite against a common racial enemy—to get poor whites and rich whites, for example, to join together in despising blacks. John C. Calhoun—a man who was the subject of a laudatory Nazi biography in 1935—described the basic strategy in 1821.
Nazi politics too was a politics of a kind of egalitarianism in the Calhoun style—egalitarianism for those persons the Nazis deemed to be members of the Volk, at the expense of those who were not.
Nazi judicial butcher Roland Freisler praised as the “primitive” and “political” character of American law—its willingness to ignore the demands of science and discard inherited principles of law such the presumption of innocence. Freisler perceived the United States as a place where the law served the will of the people, unfettered by juristic quibbles. If the people determined that some races were to be disfavored, the courts interposed no obstacle, and he demanded something similar for Nazi Germany.
The people have spoken; there is no further truth to discuss. This is a “political” argument of a kind that has little purchase in any advanced democracy other than ours. The success of any such argument is a measure of the weakness of the rule of law.
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.
This jurisprudence would suit us perfectly, with a single exception. Over there they have in mind, practically speaking, only coloreds and half-coloreds, which includes mestizos and mulattoes; but the Jews, who are also of interest to us, are not reckoned among the coloreds.
That transcript reveals the startling fact that is my point of departure in this study: the meeting involved detailed and lengthy discussions of the law of the United States. In the opening minutes, Justice Minister Gürtner presented a memo on American race law, which had been carefully prepared by the officials of the ministry for purposes of the gathering; and the participants returned repeatedly to the American models of racist legislation in the course of their discussions.
Indeed 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 of
the kind the Nuremberg Laws were intended to establish.
And virtually no one has suggested otherwise, with the notable exception of a shrewd paragraph in Mark Mazower’s 2008 book Hitler’s Empire.3
The person who has given the question the most sustained attention is a German lawyer named Andreas Rethmeier, who wrote a 1995 dissertation on the Nuremberg Laws that included an examination of some of the many Nazi references to American law.4 After reviewing his data Rethmeier arrived at a disconcerting verdict: America was, for the Nazis, the “classic example” of a country with racist legislation.5 Nevertheless, he insisted forcefully that the idea of American influence on the Nuremberg Laws was “not just off-base, but plain wrong.” After all, he argued, the Americans classified Jews as
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“[T]he few and fleeting references by Nazi polemicists and ‘jurists’ to Jim Crow laws,” writes the American legal historian Richard Bernstein, for example, “were, as far as I can tell, simply attempts to cite vaguely relevant precedents for home-grown statutes and policies to deflect criticism, not actual sources of intellectual influence.”7
Most recently, Jens-Uwe Guettel has written, in a 2012 book, of what he calls the “astonishing insignificance of American segregation laws” for Nazi policies. The Nazis, Guettel insists, regarded America as hopelessly mired in an outdated liberal outlook.
All of these scholars are perfectly aware that the Nazis had things to say about American law. But their reassuring consensus is that the Nazis said them merely in order to claim a specious parallel to their racist programs in the face of international condemnation.10 The Nazis were interested in taunting America, not learning from it.
see, it was the most radical Nazis who pushed most energetically for the exploitation of American models.
In the early 1930s the Nazis drew on a range of American examples, both federal and state. Their America was not just the South; it was a racist America writ much larger.
harsh: for Nazis of the early 1930s, even radical ones, American race law sometimes looked too racist.
In part, the Nazis looked to America for the same more or less innocent reasons others did all around the globe. The United States is powerful, wealthy, and creative, and even its most visceral enemies have found things to admire about it.
1930s. FDR received distinctly favorable treatment in the Nazi press until at least 1936 or 1937, lauded as a man who had seized “dictatorial powers” and embarked upon “bold experiments” in the spirit of the Führer.15
the New Deal depended heavily on the political support of the segregationist South.
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.
And whatever the Nazis may have thought about southern racism, southern whites themselves did not generally become supporters of Hitler.
We now know that in the background of this horror lay a sustained engagement with America’s eugenics movement. In his 1994 book The Nazi Connection: Eugenics, American Racism, and German National Socialism, historian Stefan Kühl created a sensation by demonstrating that there was an active back-and-forth traffic between American and Nazi eugenicists until the late 1930s, indeed that Nazis even looked to the United States as a “model.
American eugenicists, repellant though they were, did not advocate mass euthanasia, and the period when the Nazis moved in their most radically murderous direction, at the very end of the 1930s, was also the period when their direct links with American eugenics frayed. In any case, eugenics, which was widely regarded as quite respectable at the time, was an international movement, whose reach extended beyond the borders of both the United States and Nazi Germany.
historians have shown that Nazi expansion eastward was accompanied by invocations of the American conquest of the West, with its accompanying wars on Native Americans.
Indeed as early as 1928 Hitler was speechifying admiringly about the way Americans had “gunned down the millions of Redskins to a few hundred thousand, and now keep the modest remnant under observation in a cage”;
If the Nazis found precedents and parallels and inspirations in America, they nevertheless struck out on their own path. Still, what all this research unmistakably reveals is that the Nazis did find precedents and parallels and inspirations in the United States.
In the early 1930s, as the Nazis were crafting the program of racial persecution enshrined in the Nuremberg Laws, they took a great interest not only in the way Henry Ford built cars for the masses, not only in the way Hollywood built its own mass market, not only in FDR’s style of government, not only in American eugenics, and not only in American westward expansion, but also in the lessons to be garnered from the techniques of American racist legislation and jurisprudence.
Scholars like Guettel and Hanke have addressed their question in unmistakably American terms. What Americans ask is whether “Jim Crow” had any influence on the Nazis; and by “Jim Crow” they mean segregation as it was practiced in the American South and fought over in the American civil rights era from the early 1950s into the mid-1960s
But the principal difficulty with the conclusions of Guettel and Hanke is that they are answering the wrong question. Segregation is not what counts most.
The Nuremberg Laws said nothing about segregation. Their concern, and the overwhelming concern of the Nazi regime of the early 1930s, lay in two other domains: first, citizenship, and second, sex and reproduction. The Nazis were committed to the proposition that “every state has the right to maintain its population pure and unmixed,”35 safe from racial pollution.
In both respects they found, and welcomed, precedent and authority in American law, and by no means just in the law of the South. In the 1930s the United States, as the Nazis frequently noted, stood at the forefront of race-based lawmaking. American immigration and naturalization law, in the shape of a series of laws culminating in the Immigration Act of 1924, conditioned entry into the United States on race-based tables of “national origins.”
America was a beacon of anti-miscegenation law, with thirty different state regimes—many of them outside the South, and all of them (as we shall see) carefully studied, catalogued, and debated by Nazi lawyers. There were no other models for miscegenation legislation that the Nazis could find in the world, a fact that Justice Minister Gürtner highlighted at the June 5, 1934, meeting
Our literature has taken a crass interpretive tack: it has assumed that we can speak of “influence” only where we find direct and unmodified, even verbatim, imitation. That is the assumption behind Rethmeier’s confident assertion that American race law could not have influenced the Nazis,
In any case, influence in comparative law is rarely just about literal imitation. Influence is a complex business of translation, creative adaptation, selective borrowing, and invocation of authority. All borrowers engage in tinkering and retrofitting; that is as true of the Nazis as it is of any other regime.
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. Alluding to foreign influences remains largely out of bounds in Germany for that reason.
The racially pure and still unmixed German has risen to become master of the American continent, and he will remain the master, as long as he does not fall victim to racial pollution.
There were moments, during the frightening and uncertain years from 1933 through 1936, when Nazi views of the United States were marked by anti-American resentment, hatred toward American Jews, and contempt for American constitutional values; but there were also moments when Nazis expressed hope for a future of good relations, and a belief in the kinship between the United States and Germany as countries both committed to maintaining “Nordic” supremacy.
It was in response to Brodsky’s decision that the Nazis proclaimed the first of the three Nuremberg Laws, the Reich Flag Law, which enshrined the swastika as the exclusive national emblem of Germany. 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.
when Hitler and Göring proclaimed the two new anti-Jewish laws at Nuremberg, they did so in speeches that were decorated with expressions of friendship toward the Roosevelt administration and the United States.
The history of Flag Law is a window into the murky currents and countercurrents of hostility and tentative amity that characterized Nazi attitudes toward New Deal America in the early 1930s.
In the careful judgment of historian Philipp Gassert, for example, 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.28
It is true that the Nazis abhorred the “American ideals of the God given and inalienable rights of all peoples to life, liberty and the pursuit of happiness” of which Brodsky spoke. Nevertheless, in the first years of Nazi rule there remained a widespread sense in Germany that the United States was at heart a kindred “Nordic” polity,
Wirth, in his 1934 Völkisch World History, a global history for Nazi readers, with a stock portrait of Hitler as its frontispiece, described America for his German readers in these terms in his opening pages: “The most important event in the history of the states of the Second Millennium—up until the [First World] War—was the founding of the United States of America. The struggle of the Aryans for world domination received thereby
The Reich citizen is the sole bearer of full political rights, to be exercised according to the measure of the laws.
The Blood Law left unresolved the difficult question of who counted as a “Jew.”
The Nuremberg Laws did not aim to set up a system of segregation or apartheid. Their twofold purpose was to create a new Nazi law of citizenship, alongside a new Nazi law of sex and intermarriage, which I will call by the American name “miscegenation.” As for America, citizenship and miscegenation were both central to American interwar race law. Segregation was only a part of it.
In the 1950s Brown v. Board of Education became the pivot on which our understanding of modern American race law turned;44 and we have commonly framed American race questions around the conflict between Brown and Plessy v. Ferguson ever since.45
The identification of race law with segregation has shaped all of the English-language literature on
