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March 25 - April 2, 2019
the United States offered the model of anti-miscegenation legislation. The notion that marriage between “superior” and “inferior” races should be avoided was widespread in the world in the age of early twentieth-century eugenics.19 Nevertheless actual legislative bans were a rarity; certainly the Nazis had a hard time uncovering non-American examples.
not only did thirty American states declare racially mixed marriages civilly invalid, many of them also threatened those who entered into such marriages with punishment, sometimes harsh. This was highly unusual.
The contrast with the anti-miscegenation statute of an American state like Maryland was stark.
is in the criminalization of racially mixed marriage that we see the strongest signs of direct American influence on the Nuremberg laws.
German authors observed, the United States had basic lessons to teach: because it had a long history of sexual relations between masters and slaves, it was a country, as Eduard Meyer reported in 1920, that was groaning under the weight of “an enormous mass of mongrels,”28 and it had consequently developed a large body of law on mongrelization, defining who did and did not belong to which race. Unlike American immigration and citizenship law, moreover, this law was “open”: it made no secret of its racist aims, and employed no devious pathways or subterfuges.
The painful paradox, as we shall see, is that Nazis lawyers, even radical ones, found American law on mongrelization too harsh to be embraced by the Third Reich. From the Nazi point of view this was a domain in which American race law simply went too far for Germany to follow. Nevertheless, we shall also see that Nazi lawyers put real
Concerned that the “National Revolution” might slip out of control, the party set out to calm matters by creating “unambiguous laws” that would put the business of persecution securely in the hands of the
That passage pointed to two examples for the new Nazi order to follow: medieval expulsions of the Jews in Europe—and modern-day American Jim Crow.
honor of this kind is already practiced by other Völker. It is well-know, for example, that the southern states of North America maintain the most stringent separation between the white population and coloreds in both public and personal interactions.44 There are few documents that show more provocatively how mistaken it is to imagine that American segregation law was of no interest to the Nazis.
is a striking fact that it treated Jim Crow as more radical than what the Nazis themselves envisaged: The Nazi program was to be carefully restricted to instances in which Germans and “coloreds” consorted in public; as one radical Nazi on the drafting team declared, the proposal in the Memorandum was in that sense “very limited”;45 by contrast, as the Memorandum made a point of noting, Jim Crow targeted “both public and personal interactions.”
After the Night of the Long Knives it was impossible to pretend that Germany had not cut all ties with traditional conceptions of even a minimal rule of law.48 But before then, at least until the early summer of 1934, comparatively moderate lawyers were in a position to hold something of a line, and the record of conflict over the Prussian Memorandum shows that they did so.
During the early 1930s Lösener and other jurists fought to limit the definition of “Jew,” shielding where possible persons of only half Jewish descent.63 Those efforts, which historians have traced in engrossing detail in the archives, were only partly successful: the ultimate implementation ordinance of the Reich Citizenship Law did include some, but not all, half Jews within the disfavored status.
Such was the context of the making of the Nuremberg Laws: With mob violence periodically erupting in the streets, Nazi legal officials were under pressure to draft “unambiguous” laws banning mixed marriages and sexual liaisons. Nazi leaders with an eye on foreign relations were hesitant to see the passage of provocative race legislation. Party radicals wished to criminalize all sexual mixing; moderate jurists were full of doubts. The radicals wanted an expansive definition of “Jews”; moderates resisted. In the ensuing debates, Germans went looking for foreign models, and they found the
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Like American immigration and citizenship law, American anti-miscegenation law was very old, dating back to a pioneering Virginia statute of 1691.65
new. American states continued to introduce anti-miscegenation statutes in the early twentieth century; this was an active area of American racist lawmaking.67
Beginning in 1905, German colonial administrators in South-West Africa and elsewhere instituted anti-miscegenation measures, intended to safeguard the “purity” of the German settler population against mixing with the natives. These racist measures were unparalleled among other European colonial powers, but they had a model in America, and German colonial administrators investigated that model eagerly, as Guettel has shown in important work.
German interest in American anti-miscegenation law did not fade in the 1930s. The anti-miscegenation measures that prewar colonial administrators produced may or may not have directly influenced the Nuremberg Laws; historians disagree.70 But there can be no doubt that the drafters of the Nuremberg Laws studied American law just as eagerly as their colonial predecessors did. America was the great model in 1905, and it remained the great model three decades later.
the June 5, 1934, meeting of the Commission on Criminal Law Reform.
The meeting was called to respond to the demands that the Memorandum had made, and the principal legal questions on the table were whether mixed marriages should be criminalized, what form any such criminalization should take, and how to manage the challenging business of defining “Jews” and other members of disfavored races,
At the time that the meeting occurred, the Night of the Long Knives had not yet taken place. The meeting thus dates to the last weeks before the mask had fully fallen from the face of radicalism in Nazi Germany, and the transcript records a last moment of moderate success.
There were menacing references to the political agitation taking place outside the meeting.82 Freisler hinted, courteously but ominously, that the ultimate judgment would have to be made not by the professional jurists present, but by the “political decision” of the Nazi leadership.83 If the moderate lawyers were able to hold the line at this meeting, it is clear enough in retrospect that the political forces were arrayed against them.
It was at this point that Grau turned to America, the homeland of race-based law. He noted that Jim Crow segregation, already put on the table by the Prussian Memorandum, might seem to offer a possible model for an approach founded on “education and enlightenment.” However, it was his view that segregation was not suitable to German circumstances:
It is my conviction that just taking the path of social segregation and separation will never achieve the goal, as long as the Jews in Germany represent a thoroughly extraordinary economic power.
It deserves emphasis that Grau went out of his way to dismiss the option of Jim Crow segregation: The fact that he felt obliged to do so suggests clearly enough that there had been debates about American law behind the scenes before this meeting took place.
Minister of Justice Gürtner then took the floor to open the general discussion. His intervention revealed that the ministry had been working hard to collect information on the very American example that Grau had brought up:
State Attorney Dr. von Dohnanyi: Yes, the jurisprudence speaks of the Caucasian race simply in opposition to all colored races, that is to say it speaks of the white race, and since Jews belong to the white race they are reckoned among the Caucasians.
this legislation is not directed against Jews, but protects the Jews. That gives us nothing to work with; the aim [of an American-style approach] would be the contrary [of our own].
“Then it is interesting,” Gürtner reported, “to see what legal consequences are attached to sexual union. That too is variable. All sorts of expressions appear: ‘illegal’ and ‘void,’ ‘absolutely void,’ ‘utterly null and void.’ ‘Prohibited’ also sometimes appears. From these shifting and not very sharply juristically defined words it can be seen that civil law consequences attach in all cases, and criminal consequences in a great number of cases.”95 This was the critical point: In America there were “criminal consequences.”
Gürtner rushed to argue, it could not really be the case that Americans routinely imposed such “criminal consequences” in practice: “A question that cannot be answered on the basis of our research is how criminal law race protections are applied in practice. It seems to me that the snapshot we have here does not in practice always correspond to the reality.”96
The plain truth, he insisted, was that the German people were convinced that the Jews were an inferior race, and German law should say so openly. Here, Klee believed that America offered a valuable model. American race law, he argued, was unquestionably founded on a belief in racial inferiority: like the Supreme Court in Brown v. Board of Education, Klee had no doubt that Jim Crow was designed to dramatize the inferiority of the black population.102 Klee viewed segregation as a form of Nazi-style “race protection,” intended to alert the white population to the menace posed by blacks. Jim Crow,
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Freisler, showing typically bluff radical Nazi contempt for technical doctrinal concerns, countered by citing the United States. The problem, Freisler maintained, along with another radical companion, was not a “scientific” or “theoretical” matter at all. It was a problem that called for a purely “primitive” and “political” response110—and American law was Freisler’s model of the “primitive” and “political.” American law, he said, demonstrated that it was perfectly possible to have racist legislation even if it was technically infeasible to come up with a scientifically satisfactory definition
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At any rate, he explained, the beauty of the American example was that it demonstrated, as American law so often does, that it was possible to manage a functioning legal system without the sorts of clear concepts German lawyers cherished:
American courts did not allow themselves to be hobbled by some pedantic insistence on clear and juristically or scientifically defensible concepts of race. They just went to work. Even though America did not target the Jews, this American common-law style of legal racism, with its easygoing, open-ended, know-it-when-I-see-it way with the law, had a “primitivity” that would “suit” Nazi judges “perfectly.”
The American question was thus sharply framed as part of the conflict between hardliner and moderate. Freisler, the champion of merciless
criminalization and “primitive” rather than juristic decision making, declared that the American approach would “suit us perfectly”; Gürtner, the lawyer-moderate, still in the saddle in early June 1934, but destined to lose in the political battles of the coming year, insisted that there was no place for “American models” in the more modest and juristically conventional approach he advocated.
All this certainly does not mean that the Blood Law was mechanically copied from the law of some American state, but it can hardly be written off. What it suggests, clearly enough, is that for radical Nazi lawyers in the summer of 1934, as for Hitler in the 1920s, America was the obvious preeminent example of a “race state,” even if it was one whose lessons were not unproblematically applicable to Germany. The bottom line is this: when the leading Nazi jurists assembled in early June 1934 to debate how to institutionalize racism in the new Third Reich, they began by asking how the Americans
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As for the ministry’s memo: it is clear that it drew on the research of a man I have already mentioned several times, Heinrich Krieger, to whom a reference was later added in a redacted version of the stenographic transcript,
Krieger was a young Nazi lawyer who had just returned to Germany from Arkansas, where he spent two semesters as an exchange student at the University of Arkansas Law School in 1933–34.
he published a well-wrought English-language article in the George Washington Law Review titled “Principles of the Indian Law.”
Krieger’s command of the finest techniques of advanced German scholarship. Nazi law was marked by a strong commitment to what Americans call “Legal Realism,” the style of legal scholarship that also dominated in New Deal America. (I will return to the comparison between these two legal realisms in the Conclusion.) Legal Realism in the 1930s was an approach that looked beyond the black letter of the law in the effort to grapple with larger social and cultural forces. The young Krieger was a prime representative of the Nazi strain of realism. Indeed his interpretation of America is one of the
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presented a careful and learned review of the history of American Indian law, whose point was to expose the ultimate incoherence of the formal law. There was only one way to make sense of the jarring contradictions in American Indian law, Krieger argued: it simply had to be understood as a species of race law, founded in the unacknowledged conviction that Indians were racially different and therefore necessarily subject to a distinct legal regime.
What horror we all ought to feel when we learn that Hans Frank referred to the Jews of Ukraine as “Indians” in 1942.134
Lincoln was Krieger’s exemplary statesman, to whom he referred reverently: he maintained that America could have become a truly healthy race-based order if only Lincoln, wise in the knowledge that the races could not inhabit the same country, had not been assassinated.
American law was able to manage as it wrestled with the same critical “problem” as Germany: how to treat “mongrels”: “The problem of the legal treatment of mongrels has received a simple solution, at least from the point of view of American statutory law: A fundamental distinction is made between only two population groups: whites and coloreds. All of the concepts
used in the regulations accordingly involve artificial line-drawing, partly by statute, partly by the courts.”
EVALUATING AMERICAN INFLUENCE
Combating older historiography that minimized importance of American influence, esp. bc. it didn't mention Jews
The question remains whether we can say that the Nazis were in some meaningful way directly “influenced” by American miscegenation practice. The answer to that question is an (inevitably controversial) yes.
leading German lawyers of the early Nazi period framed their conceptual question as the question of whether marriage could ever be the subject of criminal law, outside the cases of bigamy and “malicious deception.” American law offered the great example of a Western system that criminalized mixed marriages.
Konrad Zweigert and Hein Kötz, the preeminent postwar German specialists on comparative law, give a standard account of how foreign law affects legislative innovation: Legislators all over the world have found that on many matters good laws cannot be produced without the assistance of comparative law, whether in the form of general studies or of reports specially prepared on the topic in question. Ever since the second half of the nineteenth century legislation in Germany has been preceded by extensive comparative legal research.
” American law was concerned with defining “Negroes” just as German law was concerned with defining “Jews,” and Nazi observers were well aware that the United States offered a possible model.
