Hitler’s American Model by James Q Whitman
I read a lot about World War II. Some of the thousands of stories about Nazis reference the suggestion that American race law influenced the racial policies in the Third Reich. An American Lawyer has written a book that researches this thesis. I will offer up some thoughts on his book but first, I think it is fair to ask, “If true, so what?”
Anti-Jewish sentiment has been a European, not just a German characteristic for centuries. So if German lawyers referenced American laws developing Nazi-era laws pertaining to Jews, how relevant is that to what they did and how relevant is that to Americans ninety years later? Through these laws, I think Hitler would have had his way whether citing Arkansas law on inter-racial marriage or not. Is there value in “trashing America” over its racist legal history and comparing it to that of the Nazi’s? What about America’s not inconsiderable role taking the Third Reich down.
I believe that racial laws and the Holocaust deserve our attention. These are useful reference points when considering how a whole nation can “go crazy.” Every nation goes crazy sometimes and the next generation has to make its peace with that. For example, consider the question of the atomic bomb being a war crime; I think it misses the larger point. The overwhelming majority of civilians in the United States, Great Britain, and Russia thought it morally supportable to firebomb enemy civilians. They thought that because the war “made them crazy” with respect to dispassionate judgement. Their healthy kids and grandkids don’t suffer the same malady and they don’t get it.
Before the war, there was the systematic change in acceptable attitudes regarding race and the nation in the populations of Germany and Japan; only total war altered those attitudes. For the victors, the acceptable attitudes of their enemies led to some reflection. One of the glories of World War II is it made what had previously been perfectly acceptable, even mainstream ideas, very unpopular.
Reflecting on points in the book, I come to an old question that arose from reading General Grant’s Memoirs. He makes some interesting points about the two sides that found me asking to myself, “The Civil War was thought by many to be the first modern war; was the South the first fascist state?” Grant points out that there was no freedom of the press in the South. Elections were, well, suspect. There was no freedom of the press (which he viewed as having been antagonistic to the northern war effort). There was only one real political party. But fascist? No. To be fascist, they would have had to have a centralized government and a government that controlled the means of production. The Confederacy didn’t come close by those definitions; they were all about State’s rights and they learned through their defeat what that meant when fighting a modern war against an enemy that centralized its resources.
Evil people and “crazy cultures” exist in the absence of any specific political structure.
Central to the book’s outlook are the Nuremberg laws which came to be in 1935 and are summarized as follows:
Regarding Citizenship: Only certain people could be citizens of the German State. “A Reich citizen is exclusively a national of German blood or racially related blood, who demonstrates through his conduct that he is willing and suited to faithfully serve the German Volk and Reich.”
As “German blood” was at the root of the definition of a citizen, the law reviewed “the protection of German Blood and German Honor:”
Marriages between Jews and German nationals was forbidden; such marriages if they occurred would be null and void no matter where they occurred.
Extramarital intercourse between Jews and nationals was forbidden.
Jews could not employ female nationals of German blood if under 45 years of age.
Jews were forbidden to raise the Reich and National flags.
Jews were allowed to display Jewish colors……
A variety of punishments were outlined for violation of these laws: jail time with hard labor, labor, and fines.
There was one other section that is of interest and it relates to the national flag of Germany also proclaimed in this set of laws. Its presence was facilitated, in part, by an event in New York City………Prior to the Nuremberg laws, the official German flag was the one we know today; before 1935, the Nazi flag was in fact a political banner, often flown with the national flag when the Nazi’s came to power. In July of 1935, a mob, what would now be labeled, “Antifa” presented to the docks in Manhattan where the SS Bremen, a state-of-the art German passenger ship was docked. Five men managed to tear down the Swastika banner and drop it into the Hudson. They were arrested. The were brought before a judge (who happened to be Jewish) in lower Manhattan who ordered their release after giving a rousing speech denouncing Nazis. This became an international incident and Hitler characterized it as an insult to the nation. This provocation led to the Swastika banner becoming, through the Nuremberg laws, the official state flag of Germany.
These laws were researched and thought about with radical Nazi’s debating traditional German jurists who wanted to remain in power.—they were right wing, but not Nazis. The book reviews the transcripts of the meetings at the preparatory conference researching the proposed Nuremburg laws. Anecdotes from that conference and my summary of the ideas expressed follow:
The easy marks are the many quotes that tie the Nazi’s to America’s culture. For example, in Mein Kamp, Hitler praises the United States for being singular in its progress to raising a healthy racist order. Not only did he reach that conclusion, but he also saw that example as the most important advance of the coming world order in the second millenium. He would agree with a shared sense of American exceptionalism.
A Nazi historian wrote a laudatory biography of none other than John C. Calhoun of South Carolina. He presents the prescient (for a Nazi) Calhoun’s point: Whites were inherently superior and there is competition among whites; to have an egalitarian white society, race slavery is necessary because it is the best way to assure equality among whites. The Germans could substitute Volk for whites and, done!
To reference a Southern political figure who had died before the Civil War is troubling to me as an American; the South lost……John C Calhoun’s legacy as well as his name is largely unknown to most of us with the possible exception of South Carolinians. What relevance to the modern world would this have? He could be viewed as a prophet, unheeded by his peers but forecasting what would come to be—and the Nazi’s felt that 1930’s America pretty much had followed the heart of Calhoun’s argument.
How is that, again?
The modern world as known in 1935 held as legitimate, beliefs based in “science” that were to our eyes primitive or flat-out wrong. Fascism and Communism were viable political systems competing on the world stage. The historical progress in technology, finance, and military power attributed to Western Europe was held up as evidence for the natural superiority of Northern Europeans and their offspring. Even “progressive” people of the time were afflicted with such beliefs: Eugenics and the inferiority of blacks, thought of as being scientifically based were co-mingled with socially progressive movements like the labor movement and women’s rights. We can beat ourselves up for this; I will quote Jesus here: “let he who is without sin throw the first stone (John 8:7)” My grandparents and great-grandparents undoubtedly believed some of these things. I do not. Where do I (we) go from here?
The lesson of this book for me is the value of looking to see how people on the outside of our country view us and compare that to how we see ourselves—and then learn something from the difference.
Here are some impressions reflected in the book’s summary of the conference that laid foundations for the Nuremberg Laws of 1935:
The majority of European countries and the United States do not share legal systems with the same assumptions: Central European and Latin legal traditions rely on code based civil law. My Spanish teacher in High School warned me about, “my rights” if I were arrested in Mexico. “They operate through Napoleonic law, that is, your are guilty until proven innocent.” I am not sure he got that right, exactly, but his point is made in the discussion of this book about the difference in legal traditions. Americans see code based civil law as too controlling and assumptions about the individual’s role in the state are quite different in the United States when contrasted with Europeans. We have a legal tradition stemming from an English concept of common law. Common law has provided a judicial authority that is a bulwark against excessive state power.
2) The Germans under the Nazi’s were certainly not going to adapt our legal assumptions. The paradox of the debate framing up the Nuremberg laws brought some interesting points to light. All nations study and compare law-making across the world. The United States was an interesting if not exceptional example for all. The Declaration of Independence unambiguously proclaims that all men are created equal. This phrase and the beliefs behind it are ever-present in American law and history. The Declaration of Independence is not a law however…….. So the question became not only for the Nazi’s but many Europeans, seeing America as newly powerful, unusual in its traditions, and exceptional, was, how to reconcile this Enlightenment sentiment with how things actually got done. Listening in to the Nazi radicals, who did not have any problem with the notion that people in the world are inherently unequal, was, “How did they do it?” How did some high-minded principles help found a nation that was so clearly racist and able to, despite the 14th and 15th amendments which enfranchised blacks in the Constitution, as law of the land, make non-white races second class citizens programmatically. This was of interest to the Third Reich as they sought to establish a legal framework to do the same.
3) A conclusion the Germans reached in 1935 about America’s history and its legal system was that political expediency was relatively unencumbered by the judiciary. On the right (politically) they admired the legal subterfuge used to hamstring the straightforward Constitutional measures seen in the 14th and 15th amendments. The Germans under the Nazi’s mined the German culture’s sense of exceptionalism and translated it with the vocabulary of pseudoscience popular in much of the Western World. They would promote laws that built on Blood laws within the German Legal Traditions but then would also allow officials and judges to channel the “spirit” of Hitler——in my mind when confronting a particularly sticky legal point, the question could be asked, “what would Hitler do?” to help formulate the correct answer. The Nazi formulation suggested that politics had a fundamentally primitive component that met citizen’s needs and they saw Jim Crow as an example of that. They liked what they saw and the reality of it fit their planned German society with great efficiency. By the end of the war, GI’s would complain about citizens “no knowing” lots of things about their society (like the Holocaust) and regarded this as a form of deception. It may have been blindness, just as decent people in the Jim Crow South were in a sense, clueless or blind about their system.
4) Another theme of the discussion and points of view reviewed was the implicit assumptions about race that framed the settling of the American West. More than one Nazi would look and proclaim the Ukraine, to be their American West—- to be cleared of the inferior natives and settled by citizens of the Reich……it was destiny……..
5) For people who still wrestle with FDR’s legacy, the Nazi’s in the early years were fans! He was an upper class white guy. His social policies as they related to the economy were consistent with how they wanted to centralize the government’s role in society, and he did not let his “liberal” views on race get in the way of his political and economic policies given his dependence on Southern Democrats. The Nazi look at the United States also clearly identified the competition—the spirit of the Declaration of Independence in the courts and politics of the country. They identified what they referred to as a “primitive political nature” of the dominating race. This primitive force allowed the unlinking of established law and cultural influences (like the press) with how the country actually ran. The attitude of the dominating race and its culture superseded written law. Despite the 14th and 15th amendments, second class citizens could not enter railroad carriages, bathrooms, hotels, and so on. They could not vote when the majority decided they should not vote. They were penalized if they tried to get married outside of their race. The law in the US was confounding though: consider the Alabama black man who married an Italian immigrant woman from Sicily. Charged under the anti-miscegenation laws of that state, and facing jail time, the Alabama judge threw the case out: his point of law ? There was no certainty that a woman from Sicily was actually, white.
6) The Germans who in this conference were detail focussed people; they were absolutely amazed at how in the America of the 1920’s there was no pretense to science defining people by race. As far as race was concerned in legal circles, a Phillipino, a negro, a mongoloid, or a Japanese were all, “colored” and by that definition, not entitled to things whites took for granted. The German problem was trickier in that how to differentiate a Jew from a German, despite the stereotypes, was actually quite complicated and the scientists were no help. Then as now, they could provide to scientific definition of a race.
7) Monday morning quarterbacking: Few if any Germans in 1935 considered exterminating the Jews programatically. The laws as presented in the Nuremberg Code were intended to force them to immigrate. World War II made that impossible and the final solution presented itself as viable in the setting of the complete domination Germany enjoyed and a citizenry “gone crazy.” American jurists dismiss the notion that American Laws in the different states had any practical influence on the Nuremberg Laws. Their argument is that we have never formally prosecuted or singled Jews out in our legal system. I think this misses a larger point captured in the notes from the conference that led to these German Laws. They saw a primitive belief system in German citizens who formed a majority in their country; they influenced and manipulated that majority through propaganda to further the Party’s ends. They were among the most advanced countries in the Western World. It is hard not to find parallels with our country, different as we are.
The Black Lives Matter movement pushes a lot of buttons. I worry that people who find themselves against the movement find themselves comfortable with our legal system that has to this point, often evaded the obvious or as the Nazi’s found, not been an impediment to people with power getting what they want. This power can be overt, as in Jim Crow Laws, which someone of my mother’s generation could tsk tsk about while they continued to live comfortably in a segregated neighborhood. It could be a passive power, as in moving when a black family moved into the neighborhood or sending your kids to private school when the public schools were forced to integrate. The effect was the same; it enhanced the continuity of a class of second class citizen based on color. Add to that, the irony of how the liberal press will associate the alt right movement as being a new age Nazi movement and consider hypothetical interviews with Malcolm X or James Baldwin on the German points of view brought forward here; they might agree that the Nazi’s had a pretty good read on our history and culture. How would the press handle that?
Malcolm X once noted that laws can’t settle the racial problems of the United States; only education, attitude, and beliefs can address those. I have hope which can be found as I observed my grandkids in their school room last year. They really are color blind. The teaching they have experienced finds them aware of the need to at least behave properly around unexpected differences in the classroom as they relate to culture and health. My fifth grade grandson can recite an outline of how diabetics and autistic kids are different and ways to get along with them without making them uncomfortable. Sounds like progress. It’s a foundation to be tested as he goes into those ugly years, adolescence.
I have a stable of older friends and a question inevitably arises when discussing race. “How come, black people have not raised themselves the way Italians, Irish, Poles, East Indians, and even Chicanos have? What is wrong with them?” With my doctor hat on, I pose the question back to them as many of them are veterans: “Veterans with PTSD, because of terrible personal experiences often become dysfunctional; they abuse drugs, can be violent, and antisocial. What should we do with them? How come they don’t raise themselves up? I ask the question because the population of blacks growing up in poverty, usually in segregated neighborhoods share many of these symptoms. I think there’s a form of PTSD there as well. If we want to provide supports and services at Veterans with PTSD, why not use the same thinking for such people?” Of interest, PTSD is a psychological adaptation that occurs in previously normal healthy people after exposure to physical and mental stress.
The 1960’s featured a book, The Population Bomb by Paul Ehrlich. Lots of doom and gloom there. I never forget that the delaying tactics that our science and economy have brought us don’t change a fundamental truth that many of the problems identified in the featured book and our current history bring to mind: There are too many people in the world and the pressure that brings to our social systems and politics will continue to be breathtaking, just as they are with the environment. Ehrlich was worried about food supply. I worry about tolerance for needed change with more and more people affected by every decision, good or bad.
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