Hitler's American Model: The United States and the Making of Nazi Race Law

by James Q. Whitman

American influence in Germany; that is why, when scholars have wondered whether American race law influenced the Nazis, what they have wondered about is the significance of “American segregation laws.”

American race law, pre-Brown, sprawled over a wide range of technically distinct legal areas, including not only “separate but equal” segregation under the rule of Plessy, but also Indian law,47 anti-Chinese and -Japanese legislation,48 and disabilities in civil procedure and election law.49 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.

America, as Nazi authors knew, had a history of racial exclusionism that dated to the earliest years of the Republic: When the first

Congress met, among its many historic enactments was the Naturalization Act of 1790, which opened naturalization to “any alien, being a free white person.”56 This was, as a Nazi commentator observed in 1936, an unusual measure for the time: racial restrictions were not unheard of in the eighteenth century, but they were not common.

As one leading Nazi author summarized American immigration history in 1933, “[u]ntil the 1880s, a liberal freedom-oriented conception led the United States to regard itself as the refuge of all oppressed peoples, and consequently limitations on immigration, to say nothing of bans on immigration, were considered irreconcilable with the ‘free’ Constitution.”

The shift had to do largely with the appearance of Asian immigrants.61 Late nineteenth-century American immigration legislation was directed in particular against Asians,

“[T]here are few gaps in the ring fence which has been erected in the last 50 years by the United States and the Dominions in order to exclude non-Europeans.”76 As we shall see, the Nazis knew this Anglophone pattern well, and looked for their models not only in the United States, but more broadly in the British Dominions.

American immigration law was influential throughout the Anglophone world,80 and it attracted continental Europeans as well.81

Over the same decades of the late nineteenth century, the United States was developing some distinctive forms of second-class citizenship. Mark Mazower summarizes some of these forms, and speculates that the American law of second-class citizenship would have been of interest to Nazi lawyers as they set out to create their own form of second-class citizenship for Jews at Nuremberg:

Mazower

with the collapse of Reconstruction, blacks, especially but not exclusively southern ones, were

deprived of meaningful political rights by a host of late nineteenth-century legal subterfuges, designed to evade the strictures of the post–Civil War Constitution. The right to vote in particular was denied to virtually all southern blacks. The techniques involved included, notably, literacy tests, a device that had first been used by Connecticut and Massachusetts in the 1850s as a means of introducing covert racial restrictions in immigration.

The Insular Cases are little remembered by ordinary Americans today, but they were a subject of intense interest at the end of the nineteenth century and beginning of the twentieth, and contemporary legal scholars highlight them as a key development in American race law and the making of an “American Empire.”

In particular early twentieth-century Germans, including some very prominent scholars, created a substantial literature on American colonial law in the decades before the Nazis came to power.

Kaufmann’s book described at great and admiring length how America, having been called to the historic task of a “colonial expansion of its possessions and its sovereignty,”106 had confronted the question of “whether an uncivilized population … can be governed according to the norms guaranteed by the Constitution to superior [hochstehenden] citizens.”107

The early twentieth century witnessed the rise of a cult of a kind of common-law worship in Germany,108 and Kaufmann clearly participated in it:

Freund in particular explained how the United States had created a new category of “subjects without citizenship rights”;111 in so doing, he explained, America had invented a novel form of law closely analogous to early nineteenth-century state statutes barring free blacks and the late nineteenth-century statutes barring the Chinese.

America, in the eyes of this German literature, was a laboratory for experimentation in diminished citizenship rights.

as he turned to the citizenship problem in 1927, Hitler was able to seize on a source of authority that had not been available in 1920, in the form of the new American immigration statutes of 1921 and 1924.

Hitler too, like so many Europeans before him, regarded the United States as the obvious “leader in developing explicitly racist policies of nationality and immigration.”

The American Union categorically refuses the immigration of physically unhealthy elements, and simply excludes the immigration of certain races. In these respects America already pays obeisance, at least in tentative first steps, to the characteristic völkisch conception of the state.116

American legal scholars have written a great deal about the racism of the 1920s immigration statutes; but they seem not to have taken notice of the startling fact that those statutes were lauded by Hitler himself as the prime, and indeed only, example of völkisch citizenship legislation in the 1920s.

By contrast with these fellow racists, the Hitler of the “Second Book” was notably sanguine about American prospects.121 Developments in American immigration law, he held, demonstrated that Americans had seen the light:

This was the same year in which Hitler was proclaiming his admiration for the American conquest of the West, where the Americans had “gunned down the millions of Redskins to a few hundred thousand”;124 this too, he said, offered yet another “Nordic” example that the Europeans would do well to follow.

America was a country that was in some ways weak, and its future as a racist order was perhaps uncertain, but it remained the leading example of a jurisdiction groping its way toward a race law of the kind essential to the creation of a völkisch state, most especially through its sage immigration restrictions.

In the early years of the Nazi regime “deportation and annihilation” were as yet “difficult to imagine”;131 the aim that always stood “in the foreground” was to drive Jews to emigrate, whether through violence on the street or through the creation of legal disabilities.

After his ascent to the Chancellorship, Hitler himself ceased holding forth on technical legal questions. But leading Nazi jurists and functionaries picked up the thread, maintaining a steady and regularly reiterated interest in American examples.

The Nazi interest in Anglophone traditions deserves to be flagged: The Nazis were drawing on practices that had developed in the broader historically British world, not just in the United States.

Scholars who want to claim that Nazi references to American law were “simply attempts to cite vaguely relevant precedents for home-grown statutes and policies to deflect criticism” are simply wrong.

National Socialist Handbook for Law and Legislation. This was an immense tome published in the winter of 1934–35 under the editorship of Hans Frank,

Check Mazower

It is a point of some significance that the Handbook made special reference to the American model more than once:

Thus the concluding words of the standard Nazi handbook chapter on how to craft race legislation. America had attained the “fundamental recognition” and taken the first steps; Nazi Germany was carrying the logic rigorously forward; in time it was to be hoped that all of the “European culture circle” would join in.

These were more than casual references to the “warning cries” sounded in American immigration law. The publications of the early 1930s included lengthy and carefully documented studies of American immigration law and jurisprudence.

Certain aspects of American immigration law attracted particular interest among Nazi lawyers. Authors were intrigued by the American treatment of naturalization and denaturalization.

Unlike statutes elsewhere, however, the Cable Act included a race-based exception: until 1930, the act made a point of stripping American women of their citizenship if they were misguided enough to marry noncitizen Asian men.

the topic of black disenfranchisement in the United States seemed of sufficient political interest that it made its way into mass-circulation party publications.

the article shows that in 1936, as the Nuremberg Laws took hold, Nazi Party officials were making an effort to publicize the American method of creating de facto second-class citizenship to average Germans on the street, at a time when Germany too was subjecting its Jews to “racist politics and policy.” This was propaganda, but it was propaganda directed at the home population, not at foreign critics.

the same admirer of John C. Calhoun judged that the only desperate hope of America lay in mass deportation of the blacks—just as the only desperate hope of the Germans lay in the Zionist movement.

And when Nazi lawyers considered the American deprivation of black rights, they saw, bizarrely, a precisely parallel effort to combat black “influence.” For them, American blacks were not a desperately oppressed and impoverished population, but a menacing “alien race” of invaders that threatened to get “the upper hand,” and therefore had to be thwarted.

Sahm explained that American Jews, while technically suffering no legal disabilities, were relegated to a “subordinate social position” through nonlegal means such as university quotas; the respectable legal profession in particular remained closed to them.178 In this manner the United States was working to keep its Jews at bay without formally abrogating their constitutional protections.

Keeping Down Jews

Throughout Europe it was a common-place in the 1930s and 1940s that 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.

Nazis themselves expressing it—declaring, as Krieger did, that the Democratic Party of the South, through its “racist election law,” had built a one-party system, and that the only remaining question was whether it would succeed, as the Nazis had done, in making “the Party an organ of the State.”

The Nazis were clearly deeply interested in the American example, but it would be a mistake to draw overblown conclusions about the direct influence of the American model on the Citizenship Law.

American law, as Krieger wrote, was a law of Umwege, devious legal pathways. The Nazis certainly found this American juristic mischief engaging, and they were glad for the chance to point out the depth of American legal racism, both in party propaganda and in the technical legal literature. But for their part they fully intended to create an open system of racist citizenship, and if for no other reason than that they had no need to borrow from the letter of American law.

In any case, it is inherently unlikely that we would discover unmodified borrowing. Nazi jurists were German lawyers, the representatives of a deep and proud juristic tradition, one that generally exported law to other countries, not one that mechanically borrowed. What is more, they were German lawyers who were convinced that they were participating in a “National Revolution”

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.

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.

Modern lawyers in particular often want to believe that they are soldiering toward a better future—and evidence that other countries are soldiering toward the same better future, in however bumbling a way, matters to them. This is perhaps especially true of lawyers plunged into a self-consciously revolutionary situation.

it is with the Blood Law that we discover the most provocative evidence of direct Nazi engagement with American legal models, and the most unsettling signs of direct influence. American law was expressly invoked in the key radical Nazi document establishing the initial framework for the Blood Law, the so-called Preußische Denkschrift, the Prussian Memorandum, circulated by Nazi radicals in 1933.

In particular, American models were championed by the most radical Nazi faction, the fiercest advocates of a stringent ban on sexual mixing.

American courts, as German authors were aware, were capable of delivering matter-of-fact holdings such as “the mixing of the two races would create a mongrel population and a degraded civilization”;16 the American Supreme Court entertained briefs from southern states whose arguments were indistinguishable from those of the Nazis;