by Rafael Medoff
(Book review published in Ha’aretz, March 29, 2017)
“Hitler’s American Model: The United States and the Making of Nazi Race Law,”
by James Q. Whitman, Princeton University Press, 208 pp., $24.95
It’s not widely realized that Adolf Hitler wrote a sequel to “Mein Kampf.” Published only in 1961, “Hitler’s Second Book,” as it was titled, rehashed many of the themes from his earlier work but also included some significant additional material, including some fascinating praise of America’s immigration system in the 1920s.
“The American nation appears as a young, racially select people,” Hitler wrote. “By making an immigrant’s ability to set foot on American soil dependent on specific racial requirements on the one hand as well as a certain level of physical health of the individual himself, the bleeding of Europe of its best people has become regulated in a manner that is almost bound by law.”
Yale law professor James Q. Whitman, in his intriguing new book, “Hitler’s American Model,” contends that the Nazi leader’s praise of America was not merely some propaganda rant but reflected the Nazis’ genuine admiration for the laws governing race relations in America in those years.
More than that: Whitman contends that Nazi legal theorists not only extolled America’s racist legislation, but actually used it as a model for at least portions of the Nuremberg Laws. The centerpiece of Whitman’s case is a June 1934 gathering of senior Nazi attorneys and Justice Ministry officials to draft sweeping new legislation that would define the status of German Jews and their relations to non-Jewish Germans.
In preparation for the conference, the attendees examined legal systems around the world, in search of precedents for government-imposed legal restrictions based on race. They were not looking for ammunition to publicly justify the laws they were creating; in fact, there was no public aspect at that point, since the 1934 meeting was held entirely behind closed doors. Rather, Whitman shows, they were trying to determine how best to turn Nazi racial ideology into German federal law.
“This pivotal meeting on the road to the Nuremberg Laws involved repeated and detailed discussion of the American example,” Whitman writes. The Germans were not interested so much in U.S. segregation laws; their goals were to disqualify Jews from citizenship and to criminalize marriage and sexual relations between Jews and non-Jews, in order to “protect German blood and honor.”
For this, they looked to a number of American legal innovations. One was the way in which the U.S. immigration quotas, adopted by Congress in 1921 and tightened in 1924, were structured to heavily favor what were considered “racially desirable” people in northern and western Europe, and severely reduce the number admitted from eastern and southern Europe (primarily Jews and Catholics) and from Asia. Although the U.S. was by no means the only country to decide immigration based on racist ideas, Whitman notes, it had become “the leader in developing explicitly racist policies of nationality and immigration.”
The Nazi jurists were also keenly interested in America’s development of a type of second-class citizenship for residents of Puerto Rico and the Philippines, the territories that the U.S. captured and occupied in the Spanish-American War of 1898. The Supreme Court upheld the conquered peoples’ status as “non-citizen nationals.” German legal scholars created an extensive body of literature on the subject, which the Nazis utilized. “America, in the eyes of this German literature, was a laboratory for experimentation in diminished citizenship rights,” Whitman notes.
As an example of the prominence of sentiment in America against race-mixing, Whitman quotes U.S. Senator Theodore Bilbo (Democrat of Mississippi) railing, in 1938, about how “mongrelization” could “destroy white civilization.” Bilbo worried that “even one drop of Negro blood placed in the veins of the purest Caucasian destroys the inventive genius of his mind and palsies his creative faculty.”
Many states—primarily, but not exclusively, in the south—defined a Negro as someone who had any Negro ancestors; hence the term “one drop.” Ironically, the Nazis considered the one-drop rule too harsh, and instead adopted the one-grandparent rule to define Jewishness.
Whitman should have mentioned that such views were held not only by crude southern demagogues, but by the president of the United States himself. In a document from 1939 (first published by this author more than 10 years ago), President Franklin D. Roosevelt was reliably quoted by a friendly senator as boasting, “We know that we do not have any Jewish blood in our veins.” Prof. Greg Robinson’s study of FDR’s writings in the 1920s uncovered statements warning that “the mingling of white with oriental blood on an extensive scale is harmful to our future citizenship.” And there can be no doubt (since it was a matter of public controversy) that the president approved his administration’s policy of segregating Negro blood donations during World War II.
Did America’s racist legislation directly influence any aspects of Nazi racial laws? Whitman concludes that although the Nazi statute criminalizing mixed marriage “was not directly copied” from the U.S. legal code, the German jurists’ thinking clearly was “influenced” by the American example, as demonstrated by their frequent reference to U.S. law during that crucial 1934 conference, and the inclusion of extensive American material in major Nazi law texts. While “it is perfectly possible” that the Nazis “would have succeeded in criminalizing mixed marriages even if they had not had an American example to cite,” Whitman writes, there is “no justification for ignoring the evidence of Nazi engagement with American models that litters the sources.”
All of which, Whitman concludes, does not reveal anything new about the racism of either Nazi Germany or early 20th-century America, but it does document some troubling legal connections between the two, and it “tells us some uncomfortable things about the character of American legal culture.” The most uncomfortable is that the U.S. was “not just a country with racism,” but was “THE leading racist jurisdiction” in the world—“so much so that even Nazi Germany looked to America for inspiration.”
Whitman errs, however, in his failure to emphasize the broader context. The U.S. and Nazi Germany in the 1930s were moving in opposite directions. America was in the process of rejecting and abandoning its shameful racist legacy. That process was all too slow and would take several more decades to complete; but it was well underway. Certainly it is appalling that many southern states had anti-miscegenation laws until 1967; but it is also significant that 14 other states repealed such laws between 1948 and 1965. Had Hitler lived, he would not have liked very much about America for much longer.
Whitman stumbles, too, when he argues, in his conclusion, that some aspects of contemporary American criminal justice are so “spectacularly, and frighteningly harsh” as to be “uncomfortably reminiscent of [practices] introduced by the Nazis.” His example is the ‘three strikes-and-you’re out’ law. “The Nazis too promoted habitual offender sentencing,” Whitman asserts. That is not much different from arguing that America’s death penalty laws are reminiscent of Nazism, since the Nazis too promoted capital punishment. Whatever one thinks of the three-strikes sentencing guidelines, Whitman is overreaching in making such a comparison of America to the Nazis.
These flaws aside, “Hitler’s American Model” is, overall, an erudite, well-researched, and thought-provoking study that raises important questions about America’s laws—and leaders—in the not-so-distant past.