When Hitler Looked to America: A Review of Hitler’s American Model: The United States and the Making of Nazi Race Law
By Victor Ray | @victorerikray |with thanks to NewBlackMan (in Exile)
Sunday, November 19, 2017.
The Nazis modeled their racial state on American law. James Whitman’s important new book, Hitler’s American Model: The United States and the Making of Nazi Race Law (Princeton University Press), carefully argues that the Nazis saw in America’s racist laws not an exact map, but a broad set of principles that could be adapted to the contextual needs of the National Socialist nation-state. American immigration restrictions and “blood law” were especially useful models for the Nazis to maintain national purity. Although many nations had immigration laws, America was the only country in the world, according to Whitman, with an anti-miscegenation law. In combination, America’s blood and immigration laws, by defining who counted as Black (or, more properly non-White), created a kind racially tiered citizenship, with rights extended or retracted based upon race. Whitman’s book is further evidence that the tendency to see the Nazi state as a historical anomaly and singular evil is simply wrong.
Neither the goals of the Nazis—a racially pure ethno-state with centralized political power—nor their brutal methods were particularly unique. America was a path breaking racial state, founded on principles of racial exclusion, expulsion, and extermination that Hitler cited approvingly. Whitman shows that White Supremacy has always been an international project. His book also resonates with aspects of critical race theory and serves as a warning for the current political moment.
Whitman draws heavily upon transcripts from a key 1934 meeting of early Nazi radicals and lawyers as they established the legal basis for what would become the Nuremberg Laws, institutionalizing anti-Semitism. As with most political projects, the meeting where the Nazis delineated racial belonging was conflict-ridden. The traditional Nazi lawyers (Whitman uses the jarring descriptive term, “moderate Nazis”), steeped in German jurisprudence, found it difficult to justify anti-miscegenation statutes. According to Whitman, the civil law tradition upon which German law was based relied upon clearly-defined concepts applied from the top down. Thus, the career German lawyers found the porous boundaries of racial definition difficult to square within their framework.
For the most radical Nazis, American common law held an advantage. Americans recognized race as a matter of descent and custom, a ‘“political construction” in Whitman’s terminology. American law was unified under principles of White Supremacy without a clear biological delineation of who “counted” as non-White. Americans were able to combat racial threats as race law could be adapted to local circumstances. The definition of who was counted as non-White varied by state, allowing the American White supremacists to “get to work” with the confidence that the law would protect them.
The Nuremberg Laws, 1935. (Image courtesy of Wikimedia Commons)
Whitman describes the research of scholars in the German realist legal tradition, which sought to show unifying principles underlying superficially unrelated legal precedents. Using this method, Nazi lawyers found an implicit racial logic within the seemingly incoherent body of American jurisprudence. The 13th and 14th Amendment created at least a legal basis for equal protection. Yet, as many scholars have laboriously shown, this equality was often minimally rhetorical and at best aspirational. As my colleague Kasey Henricks has shown, even participants in the “three-fifths” debate—which constitutionally enshrined a legal sub-humanity for Black people—used color-blind language to mask openly racist law. Courts saw little contradiction in upholding the blatantly discriminatory (and oxymoronic) precedent of “separate but equal.” In practice, both facially race-neutral and explicitly race-based law were used to dominate Black Americans.
The Germans saw White Supremacy as a unifying theme in American Law. Whitman quotes an exchange between an unnamed American and the Nazi Dr. Mobius. The unnamed American was incredulous not at the goals of Nazi law, but the method. He asked, “We do the same thing you are doing. But why do you have to say it so explicitly in your laws?” The problem was not using the law to demonize and disenfranchise racial others: rather, the problem was honesty about the goal of racial subordination.
Although Whitman does not cite the intellectual tradition of Critical Race Theory, his account is congruent with the movement’s major claims. Critical race theorists have long argued that racial inequality is built into the structure of American law and that the allegedly neutral, color-blind nature of American law is illusory. The underlying goals of American law, which the Nazis saw clearly, were deeply racial. The facial neutrality of the law allows it to remain legitimate and makes racialized outcomes seem like unfortunate deviations—rather than central goals—of the polity.
Of course, the Nazis also found much to disdain in American law. American liberalism, with its abstract commitment to universal rights, was seen by the Nazis as a naive deviation from the natural law of racial superiority. America’s deviations from constitutional equality (Jim Crow, immigration restrictions, anti-miscegenation statutes, and lynch law), for the Nazis, pointed to a universal desire of dominant races for self-preservation. National Socialism, in this reading, was simply being more honest about their goals; White Supremacy’s logical next step. The Nazis claimed America’s deviation from their stated egalitarian ideals showed that abstract notions of racial equality were mistaken.
The Nazis also thought America’s zeal for racial purity sometimes went too far. Rules of hypodescent, whereby any Black ancestry marks one as Black in perpetuity, was repeatedly described as an overextension that could lead to the “hardening” of human emotions. It is perhaps surprising to American non-specialist readers to learn that Nazis considered America’s one drop rule as crass overreach, and that National Socialists’ boundaries around who counted as Jewish—of existential import to their nation—never matched America’s White supremacist radicals.
Whitman also provides strong evidence that White Supremacy is an international phenomenon. Prior historical accounts, adopting what Whitman sees as an unwarrantedly narrow definition of legal influence, use America’s lack of explicit anti-Jewish law to claim American influence on Nazis was negligible. Whitman’s method shows that the typical ways of discussing legal influence are flawed. He argues for a broader understanding of influence, one widely recognized among artists and writers, who openly borrow, respond to, or remix inspiring ideas. Earlier histories, by refusing to acknowledge the broad definition of influence, have distorted America’s role as a leading racist state. Racist states borrow freely from one another, but apply insights from other systems to their own problems, adapting legal innovations from other nations to local circumstances. It is therefore unsurprising that the Nazis did not plagiarize American law; they paraphrased.
Whitman’s book comes as fascist ideas are again, in some quarters, in vogue. Applying Whitman’s method to current politics can help highlight the danger of the moment. We may be able to speak of Trump’s European model, as his administration has drawn inspiration, rhetoric, and staff from Europe’s rising White nationalist parties. The administration has been staffed and supported by ideologues concerned with the reconstruction of a White American ethno-state. Many in Trump’s camp—including Steven Bannon, Jeff Sessions, Steven Miller, and Sebastian Gorka—embrace some of world history’s dark precedents.
Bannon’s political philosophy draws heavily from fascist ideologues and he and Sessions are quite open about their White nationalist goals. Jeff Sessions pines for immigration policy like the 1924 Jones-Reed Act, which restricted the immigration of racial undesirables. The administration’s unleashing of ICE, the over policing of Black people, and the shifting contours of the “Muslim ban” point to an administration attempting to adopt an adapted race law to fit the current socio-political context. In this context, Whitman provides an important reminder of what can go wrong when a group of racial ideologues control state power.
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Victor Ray is an assistant professor of Sociology at the University of Tennessee Knoxville. His academic work examines race and gender discrimination in organizations and has been published in the Ethnic and Racial Studies, Annals of the American Academy of Political and Social Science, The Journal of Marriage and Family and Contexts. His commentary has appeared at Newsweek, Boston Review, Gawker, and Inside Higher Ed. Follow him on Twitter at @victorerikray
Hitler’s American Model: The United States and the Making of Nazi Race Law
