At the bus station in Durham, North Carolina, May 1940. (Photo by Jack Delano via Library of Congress.)
The most radical Nazis were the most aggressive champions of U.S. law. Where the fascist found the U.S. example lacking, it was because they thought it was too harsh
by Omer Aziz edited by O Society July 29, 2019
In September 1933, an important policy document known as the Prussian Memorandum began circulating among lawmakers and jurists of the Third Reich. The Nazi regime was still in its infancy; Hitler named chancellor just nine months prior, the result of a power-sharing arrangement with nationalist conservatives who thought they could control the mercurial Austrian.
Following the Reichstag Fire in February of that year, Hitler assumed emergency powers and within weeks usurped the authority of the parliament. By autumn, the Third Reich begun Nazifying the German legal code. The Prussian Memorandum passed between Nazi legal hands as an early blueprint for the 1935 Nuremberg Laws, which stripped Jews of their citizenship and criminalized sexual relations between Germans and those thought to have “impure blood.” It is the foundational text of Nazi legal thinking. Incredibly, the Prussian Memorandum expressly cites the gold standard of racist lawmaking at the time: the United States of America.
The following summer, on June 5, 1934, Nazi lawyers, jurists, and medical doctors gathered under the auspices of Justice Minister Franz Gürtner to discuss how to codify the Prussian Memorandum. The very first item discussed, U.S. law: “Almost all the American states have race legislation,” Gürtner averred, before detailing a myriad of examples, including the many states in which mixed marriages were a criminal offense. Roland Freisler, the murderous Nazi judge, stated at the meeting U.S. jurisprudence would “suit us perfectly.” All the participants displayed either an eager interest in, or an avowed knowledge of, U.S. law.
This went beyond specific legislation. The Nazis looked to an innovative American legal culture which found ways to relegate Native Americans, African Americans, immigrants, Chinese, Japanese, Filipinos, and others to second- and even third-class status; the many devious pathways around the constitutional guarantees of equal protection; the deliberate textual ambiguity on the definition of race itself; the draconian penalties for sexually consorting with a lesser race, or even meeting publicly. The United States in the 1930s was the apogee of a racist state.
The Nazi policymakers were at odds over whether the U.S. example was a useful one, with the traditionalists and radicals in fierce disagreement. What is remarkable is the most radical Nazis were the most aggressive champions of U.S. law, and where the Nazis found the U.S. example lacking, it was because they thought it was too harsh.
This stunning historical episode is faithfully rendered in James Whitman’s Hitler’s American Model, a slim but consequential report on the banality of lawful evil. Whitman is a professor of comparative and criminal law at Yale Law School. (Full disclosure: I was a student in his legal history class, although we never interacted.)
In his book, he asks one of those dangerous intellectual questions so pressing in the current political era: How could the United States, the land of liberty and constitutional republicanism, influence the most racist and genocidal regime of the twentieth century?
Given the neo-Nazis marching in Charleston, South Carolina, and in Chemnitz, Germany, along with the mélange of fellow-travelers on the fascist spectrum—white nationalists, the alt-right—Whitman’s investigation feels urgent. He wants to know what, if anything, the United States taught the Nazis, and what this in turn says about the United States.
Modern Germany fundamentally rejects, and assumes complete responsibility for, the heinous crimes committed under the Third Reich. The Nazis occupy a uniquely menacing place in the Western imagination, the embodiment of humanity’s darkest instincts for racial hatred and barbarism—what Hannah Arendt called “radical evil” in The Origins of Totalitarianism. Whitman uses the word Nefandum, “an abyss of unexampled modern horror against which we can define ourselves.”
“One who fights with monsters should make sure he does not in the process become a monster himself. When you look for a long time into an abyss, the abyss also looks into you.”
~ Friedrich Nietzsche – Beyond Good and Evil – Aphorism # 146
It is appropriate to be wary of invoking the Nazis, especially in an online environment which turns the words “Hitler” and “Nazi” into clichés, devaluing their meaning and cheapening the historical lessons to be learned.
At the same time, the Nazis cannot be placed in a special category outside history, outside the human condition—a sui generis episode beyond comparison. They must be demythologized and studied closely, because the National Socialist German Workers’ Party and its leader emerged out of a particular context, in a particular time, with a particular set of ideas that won greater and greater purchase the more they were propagated.
Moreover, this band of extremist reactionaries were incrementalists. As Whitman emphasizes, “it is simply not the case the drafters of the Nuremburg Laws were already aiming at the annihilation of the Jews in 1935.” At that point, the Nazis wanted to exile and marginalize the Jewish minority, turning them into second-class citizens.
Whitman’s study covers the earliest period of the Nazi regime, before it arrived at its monstrous endpoint. The Nazis’ ideas were still being debated, discussed, and put into practice at this point. Since their beginnings on the fringes of German politics, the Nazis had advocated a program of racist nationalism; they were consumed by what Whitman calls Rassenwahn—“race madness.” It was this hysteria over race, and the single-minded focus on it, that distinguished Hitler and his party from other fascists and authoritarians. It was also why the Nazis looked to the United States for inspiration.
Hitler was not influenced by the United States alone. “Let’s learn from the English,” Hitler said repeatedly, “who, with two hundred and fifty thousand men in all, including fifty thousand soldiers, govern four hundred million Indians.” According to multiple sources, Hitler was fascinated by Islam, which he saw as a muscular, militant religion in contrast to the meek faith of suffering of Christianity—despite the fact Arabs were Semites, and non-Arab Muslims considered racially inferior. Even closer to Hitler’s mind was Mustafa Kemal Pasha, or Atatürk, the founder of modern Turkey, who had resisted the Versailles Treaty and whose regime’s genocide of the Armenians was an early example of exterminationist policy.
But as far as racially-inspired lawmaking is concerned, the United States aroused the Führer’s interest the most, even as he deplored its liberal-egalitarian ethos. He loved the novels of Karl May that depicted cowboys conquering the West, and, as Timothy Snyder and others have argued, Hitler’s model for creating German Lebensraum in Europe was the American genocide of indigenous peoples, the depopulation of their lands, and their subsequent legal subjugation and ghettoization. Nazi intellectuals and doctors had a sustained engagement with the eugenics movement, which was codified into U.S. immigration law and served as a model for the Third Reich’s own sterilization and euthanasia program.
North Carolina’s sterilization policy for the mentally ill lasted until 1977.
The very founding of the United States, in white supremacist history, was the crowning achievement of the Aryan peoples. “The racially pure and still unmixed German,” Hitler wrote in Mein Kampf, “has risen to become master of the American continent, and he will remain master as long as he does not fall victim to racial pollution.” The United States was “the one state,” Hitler wrote from prison, that sensibly refused immigration to “physically unhealthy elements, and simply excludes the immigration of certain races.” In his unpublished second book, Hitler again marveled at the racial hierarchy of the United States, with Nordics, English, and Germans at the top of their rightful dominion as the master race.
Officials and lawyers in the Third Reich were also intrigued by anti-miscegenation statutes, because the policing of sex was necessary to cleanse the Aryan race. Hitler, who had been largely asexual during his crucial years as a failing painter in Vienna, was obsessed with sex and blood. The United States at the time was a global leader in banning mixed marriages, going so far as to criminally punish those who defied the law.
Many of these laws were not struck down in the United States until the Supreme Court’s 1967 Loving v. Virginia case.
The Prussian Memorandum explicitly invoked U.S. laws that promoted segregation to maintain racial purity, and the sexual morality of white women in particular. Similarly, the third Nuremburg Law expressly forbid marriages and extra-marital relations between Germans and Jews, and promised hard labor in prison for law-breakers. The more one reads about the American and Nazi fixation on race, the more evident it becomes that at the very core of racist ideology is a primal fear of sexual inadequacy, of pollution, of mixing. Racial nationalism, the ideology of the Nazis, took this idea to its logical end.
From a contemporary U.S. perspective, however, the most interesting area of influence that Whitman explores is in immigration law. From the outset, the United States had a racially restricted immigration regime. The Naturalization Act of 1790, passed by the First Congress, limited immigration to “free white person[s].” In the 1800s, the United States passed more racially exclusionary immigration laws because of the perceived threat of Asians. As Whitman notes, the Nazis “almost never mentioned the American treatment of blacks without also mentioning the American treatment of other groups, in particular Asians and Native-Americans.” The Chinese were excluded from citizenship in the late 1800s, and the Asiatic Barred Zone of 1917 expressly banned immigration from a whole swath of Asia.
Finally, the Immigration Act of 1924 set racial quotas for those who could enter the United States, and banned Indians, Japanese, Chinese, and other Asians outright, along with nearly all Arabs. Under the Cable Act of 1922, if a woman married an Asian man, her U.S. citizenship would be revoked. There were similar race-based immigration laws in Canada, Australia, New Zealand, and South Africa. Discrimination against immigrants on the basis of race was the norm, and in the United States it survived until the Immigration and Nationality Act of 1965, which is also the principal legislation that today’s white nationalists seek to undo. The Nazis had much to envy, what with the porous borders of Europe and the humiliating foreign treaties that had crippled Germany.
What of those immigrants who became citizens, or those beleaguered minorities to whom the United States granted the privileges of citizenship? Despite an avowed declaration of constitutional equality, citizenship was under its own separate-but-equal doctrine. Until 1924, Native Americans were considered “nationals” and not citizens. After the Spanish-American War of 1898, Puerto Ricans and Filipinos were legally classified as “non-citizen nationals.”
Most infamously, the 1857 Dred Scott decision held that African Americans were not citizens, and even after the Civil War, black people were legally relegated to third-class status. The Nazis took interest in all of this; the second Nuremburg Law confined citizenship to that person who “is exclusively a national of German blood, or racially related blood.” Jews were denaturalized, rendered subjects. The U.S. precedent laid out how to create a hierarchy of citizens, nationals, and subjects. Tiered citizenship and the capricious revocations of civil rights were of great interest to Nazi intellectuals.
When 20,000 American Nazis Descended Upon New York City
What is troubling about Hitler’s American Model—though Whitman never mentions it—is how closely the events of the 1930s mirror our own. Such statements are bound to seem exaggerated. But even by the early 1930s, Germany was not destined to arrive at catastrophe. The ideas in the air at the time, including anti-Semitism specifically, are still the object of white nationalist fantasy today. What is most alarming is an unstated implication of Whitman’s thesis: if U.S. racism, anti-immigrant hostility, and third-class citizenship influenced the Nazi regime, then remnants of such influence must still exist today. Indeed, they appear to be resurgent.
It is not white supremacy which differentiates America from Nazi Germany, but rather the constitutional architecture of this country—a democratic system tested, broken, remade, rewritten. Racism in the United States is counterbalanced by an emancipatory spirit. The Constitution enshrined slavery, but this same Constitution was transformed as a result of the bloodiest war in U.S. history, which ended the Southern slave empire.
The Civil War was a second American founding, and the passage of the Thirteenth, Fourteenth, and Fifteenth amendments advanced the American spirit of equality before the law. Even amid the racist terror that lasted long after the Civil War, African Americans made room in the United States to fight for their freedom, equality, and dignity. Nazi Germany, by contrast, was a totalitarian state, and its express objective was the erasure of the Jewish people. These differences cannot be minimized.
But even within a democratic constitutional system, white supremacy in the United States has persisted, ebbing and flowing along the course of history, receding at times and then returning with a vengeance. At the heart of the current white nationalist project is the racial supremacy of people who believe America was exclusively founded for them. Race madness took over the Trump base, and the White House is home to those who seek racial “purification.” The project to erode citizenship rights, restrict immigration, and reclaim the American idea as a “white idea” already is underway.
The United States is denying passports to citizens on the southern border. Denying bond hearings to those immigrants—even permanent residents—who are incarcerated. Separating children from their parents. Banning Muslim travelers. Refusing green cards to Americans who need public assistance. Politicians and law professors debate the merits of ending birthright citizenship; while currently a fringe idea, a future Supreme Court decision severely limiting birthright citizenship seems foreseeable. This purification agenda is being carried out by deportation squads roving the country in search of targets. Alarm bells ought to be going off about this program of national cleansing. We do not yet know where this ends.
The United States is a nation with two radically different ideas at its heart: white supremacy and equality under the law. A nation that currently has more immigrants than any country in the world but is undergoing traumatic convulsions at the very mention of immigrants. A nation with a pessimistic mind and an optimistic soul, founded and codified by white men, whose geographic expansion was made possible by the violent clearing out of the original inhabitants, whose economic growth was purchased through slavery, but also a land where millions of immigrants have come in search of work and opportunity.
The question of who counts in the “We” and who belongs to the “Them” is being argued and fought every day, from the courtroom to the classroom to the streets. It is a conversation that has been taking place since the founding of the United States, and one that was taking place in Germany when the Nazi cabal seized the state. How this nation answers that question will determine which of the two American ideas lives on.