Hitler's American Model

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I have a vague recollection of seeing “Guess Who's Coming to Dinner” with my parents as a child. I remember a line by Spencer Tracy where he tells his daughter that her plans to marry Sidney Poitier would be “illegal in 20 states.” That must have been 1967, the same year that the United States Supreme Court struck down anti-miscegenation laws.

I am pushing 60. 1967 was not so long ago. It's amazing how much things have changed in the space of a single lifetime.

“Hitler's American Model” by James Q. Whitman takes us back to a period when American led the world in race law.

Briefly, in 1934, Hitler's new regime wanted to bring its racial ideas into reality. The German legal profession tackled this issue as it handled most legal problems by performing a survey of race laws around the world in order to find precedents. This search brought it to America, where states had pioneered racial laws that prohibited miscegenation and made non-white racial minorities into second-class citizens. America also had progressive laws allowing for the sterilization of the disable for eugenics reasons.

Whitman examines the history and state of American racial law as of the 1930s. Whitman does not claim that Germans modeled their race law on the American version. The Germans recognized the differences between the situation of non-whites in America and Jews in Germany as preventing any such use. Moreover, the professional German lawyers were horrified at the legal treatment of minorities. The German legal class was committed to its commitment to a legal system that defined violations in such a way as to limit judicial discretion. On the other hand, the Nazi zealots found American common law an inspiration since it enabled judges to “work toward Hitler” by importing Nazi principles into the formation of laws on a case by case basis.

As Whitman points out, several times, it is a mistake to claim that the Nazis would not have enacted the Nuremberg laws without the American model or that the American model provided an inspiration for Nazis, but the Nazis did find a way to use American law, particularly in their internal debates between the zealots and the legalists.

The history here is fascinating as background for Nazi actions. For example, the Swastika was adopted as the official flag of the Nazi state as the first Nuremberg law because of a riot of New York Jews concerning the ship “Bremen” and a judicial opinion by Jewish magistrate Brodsky describing the Nazi flag as a “pirate flag.” This gave the Nazis the excuse to make the Swastika the national flag. This is an obscure bit of history that exemplifies the contingent nature of history, and the willingness of the Nazis to use actions of foreign Jews to justify domestic actions.

Also interesting was the American part of the history. Whitman says that miscegenation laws were not known outside of the American context. This surprises me, but it may be correct. Catholic cultures were not as racist as Protestant countries.[See e.g., [[ASIN:B00LPMJ1CK Almighty God Created the Races: Christianity, Interracial Marriage, and American Law]] - certainly not as racist when it came to intermarriage. So, that basically leaves the Anglophone world as providing the Protestant variant, which basically leaves America as the country that might be the outlier from global policy.

On the other hand, although something like 30 states had anti-miscegenation laws at some point, that leaves 20 that never had anti-miscegenation laws at any time, and of the remaining 30, a good number, including California, had repealed those laws. Likewise, although the Immigration Act of 1924 was incredibly racist in prohibiting immigration or citizenship of non-whites, in 1964 this policy was totally repudiated. (The Supreme Court decision in US v. Thind (1923), involving the question of whether a high class Hindu qualified as “Caucasian” is an eye-opening bit of race science. Eventually, however, the court rejects science and goes with a common law approach to defining Caucasian. Thind is not taught in law school; as a bit of history it is illuminating.)

So, interestingly, despite the Nazis' fulsome praise for America as the pioneer of race law, there was a different thread of American law that was less supportive of their policies.

Another question I have is what role the German involvement in South-west Africa, particularly the Herero Genocide, played their legal deliberations. Did the Germans have any laws pertaining to interracial marriages? It seems like a good area for future inquiry.

Whitman points to other affinities between National Socialism and America, namely the commitment of both the Nazis and the New Deal for “legal realism,” which basically means dispensing with formalities in favor of imposing social policy on pragmatic grounds. Whitman writes:

“There was more to “Realism” in New Deal America and Nazi Germany than I can explore here; the topic requires a book of its own. Here I would like to emphasize only the obvious point: The “realists” of both countries shared the same eagerness to smash the obstacles that “formalistic” legal science put in the way of “life” and politics—and “life” in both New Deal America and Nazi Germany did not include only economic programs designed to lift the two countries out of the Depression. “Life” also involved racism.
It is here that the affinities between the realisms of Nazi Germany and New Deal America should really begin to make us shift uneasily in our seats. American Legal Realism was not just the possession of liberals like Karl Llewellyn; there were also many prominent American racists of the 1930s who embraced it.73 The “realistic” attitude in American law did not just involve yielding to political decision makers when it came to economic legislation; it was also involved yielding to political decision makers when it came to racist legislation. And while some prominent realists spoke out against American racism, during the 1930s, most passed over the race question in silence.74 In that sense the American Legal Realism of the early 1930s was entirely at home in the early New Deal, founded as it was on the Mephistophelean bargain between economic reformers and southern racists. The same “realistic” legal philosophy that could be invoked to defend the “bold [economic] experiments” of FDR could also be invoked to defend the racism of the Southern Democratic Party.”

It makes a person wonder about the “zeitgeist.”

Whitman is handling a touchy subject that can provoke a negative reaction in so many different ways. He has done a good job of addressing the issues in a fair and scholarly way. I found the book interesting. I think it hit the right scholarly note.