James Q. Whitman

This book is written in what I think of as "academic recursive," a writing style most frequently exhibited by post-secondary professors. It stems, I believe, from the traditional essay structure employed by university students everywhere wherein the writer tells you what they are going to say, and then they say it, and then they remind you of what they just said. It annoys the crap out of me.

Allow me to save you the trouble of having to read this book: the Nazis thought American laws relating to marriage between people of different "races" were inspirational. Its tarted up like a bigger scandal than it is frankly, and the book focuses on what the Nazis said about the laws rather than discussing the restrictions themselves.… (més)

This book is fascinating, disturbing, and nuanced. With the bold title, and swastika on the cover, the book certainly turns heads (I learned quickly that I probably should have taken the book cover off while reading it in public). However, at the end of the day the author is a law professor, and like most law professors writes in a hedged, and nuanced tone. The book suggests more than tells, but is a valuable read regardless. At some level, the book seems not to match the provocative title at all, but I argue that this makes it more worth reading than otherwise.

At the core of Whitman's thesis is that American legal traditions and laws in the late 1890s-1930s are more influential (influential to Whitman does not mean the Nazis always admired or approved but does mean beyond superficial intellectual engagement) in Nazi thinking than previously suggested in the historical literature. People looking for silver bullet answers that America is to blame for the Nazi regime will be sorely disappointed. Whitman does not argue that the Nazis lifted American laws or that the American legal tradition is responsible for the horrible crimes of the Nazis.

His argument is more subtle, he argues that America was a "model" for the Nazis (the Nazi attitude towards the United States at least before the war seemed ambiguous, they approved of certain American race laws but saw Germany as the logical culmination of such laws, and the US in constant threat of backsliding into its liberal open door traditions). Through varied and meticulously researched historical record piecing (this itself is worth the read without the analysis), Whitman shows that the Nazis were deeply interested and surprisingly well versed in American law in the areas of Jim Crow, immigration law and most damningly anti-miscegenation laws. Partially, this was not unique in that this was something that the Anglo-legal world had in common but since the United States was the leading power of the world it provided an interesting model for Nazi legal thought. Unflatteringly, Whitman argues that America was on the frontier of race law. Whitman shows that there was intense domestic Nazi interest and discussion of American law from within Mein Kampf to the internal discussions leading up to the Nuremberg laws. The Nazis were particularly interested in the laws that created de facto second class citizenship in the US for non-whites (ultimately, choosing to not wrestle with the American struggle between the 14th amendment equality guarantees and its de facto removal of citizenship rights through literacy tests and disenfranchisement but choosing to have an openly racist state). Interestingly, the Nazis found some American measures such as the one drop rule and racial social segregation as too extreme and harsh. Whitman admits that obviously, the Nazis had to adapt Jim Crow to their racist policies towards Jews, but that did not rule out the use of Jim Crow as a legal model for trained lawyers. The Nazis praised early American immigration laws creating quotas on nationalities (unique in the world at the time) as recognition of "healthy" race policy.

Most damningly, when the Nazis debated the Nuremberg laws over banning marriage between Germans and Jews, American anti-miscegenation laws played a large role. The more traditionally "moderate" Nazi legal scholars objected to the criminalization of interracial marriage, since in Germany only bigamy was criminalized and the scholars were concerned with the lack of a "scientific" definition for Jews. However, the "radical" faction brought up American anti-miscegenation laws as an example of a system that both criminalized interracial marriage (rare for the world at the time, and complete with maps of different state laws) and operated without a clear definition of race. In fact, according to Whitman, the Nazis had great admiration for the common law and its flexibility. Even more disturbingly, the Nazis had an admiration for the legal realism of the 1930s, with its desire to replace "formalism" with political and "flexible" lawmaking. Whitman argues that in Germany, legal scholars trained in the civil law tradition acted as brakes on the Nazi legal regime in the early days, and that there is a disturbing similarity between the legal realism and the lawlessness of the Nazi regime. Whitman argues near the end that the US differed vastly from the Nazis because it never made race policy the center of its state apparatus (being bound by the 14th amendment).

I can't decide if I'm annoyed with (what I assume is) the publisher's decision to feature such an inflammatory cover and title. On one hand it draws attention to a fascinating scholarly topic, but on the other hand it suggests a thesis different from the content of the book. On a minor note, this book seems to continue the annoying trend of publishing what should be a long law review article in a small hardcover book priced at an outrageous 25 dollars!, but I digress.… (més)

Repeatedly, Nazis looking for inspiration looked to the US system of racial discrimination, primarily in the treatment of immigration, the rights of those in non-state territories, and anti-miscegnation laws. Whitman emphasizes that the Nazis’ crimes were their own and that they also rejected liberal and democratic parts of American law. They also appealled to racist practices among other European colonial powers. Still, Whitman argues that, because the Nazis didn’t envision the Holocaust when they started out, they found compelling analogies in American discriminatory practices, even though these practices were often not aimed at Jews. As with everything about America, it was possible to be selective, and the Nazis had no problem claiming that New York City had “very little to do with ‘America’” because of all its race-mixing and Jews.

Hitler was able to see the US as a model of Nordic supremacy, and he wasn’t alone; a Nazi historian described the Founding, in what Whitman says was the received wistom of the time, as “a historic turning point in ‘the Aryan struggle for world domination.’” One detailed scholarly work, Race Law in the United States, had as heroes Jefferson and Lincoln—Jefferson because of his insistence that blacks and whites couldn’t live under the same government if both were free, and Lincoln because of his early calls for black resettlement outside the US. Similarly, “Nazi expansion eastward was accompanied by invocations of the American conquest of the West, with its accompanying wars on Native Americans…. Indeed as early as 1928 Hitler was speechifying admiringly about the way Americans had ‘gunned down the millions of Redskins to a few hundred thousand, and now keep the modest remnant under observation in a cage’ ….”

Jim Crow segregation, Whitman contends, wasn’t all that important to the Nazis, but citizenship and sex/reproduction were, and it was there that they took lessons from the US. In fact, “Nazis almost never mentioned the American treatment of blacks without also mentioning the American treatment of other groups, in particular Asians and Native Americans.” American immigration and naturalization law was, almost uniquely, racist and race-based, and Hitler praised it for being so in Mein Kampf. And there were various forms of de jure and de facto second-class citizenship for African-Americans, Filipinos, and Chinese, to which the Nazis could look as they created second-class citizenship for Jews—drawing on, for example, the distinction between “political rights” and “civil rights” that American whites offered to excuse segregation. Indeed, some Nazis considered openly race-based laws to be more honest about keeping “alien races” from getting the upper hand; they had no need for grandfather clauses, and they devised the Nuremberg Laws in part to “institute official state persecution in order to displace street-level lynchings,” which offended the facist need for state centralization.

The US was also unique in anti-miscegnation laws, with careful rules about blood quantum—in fact, there were no other models for such laws for the Nazis to consult. And it mattered, Whitman suggests, that America was seen as a dynamic country—confirmation for the Nazis that the future was going in their direction. Among other things, American creativity on the definition of race showed that one didn’t need a purely scientific or theoretical definition of race, despite the leanings of German law; one could proceed with a political, pragmatic definition in enforcing anti-miscegenation and other discriminatory laws. Indeed, that’s ultimately what the Germans did when they defined Jews as including people with one Jewish parent if and only if they practiced Judaism or married Jews (rejecting, along the way, the even more aggressive American one-drop rule). Whitman concludes that we have to acknowledge that the Nazis practiced a particular kind of Legal Realism, whereby the law was supposed to assist in the process of social transformation, throwing formalism aside and recognizing reality—and reality, in both countries, was racist. “[T]o have a common-law system like that of America is to have a system in which the traditions of the law do indeed have little power to ride herd on the demands of the politicians, and when the politics is bad, the law can be very bad indeed.” Whitman finds the most prominent modern manifestation of this in the US in its harsh criminal justice system.… (més)