The Chronicle Review

How U.S. Law Inspired the Nazis

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Asian immigrants in the late 1920s await processing in an internment center in San Francisco.
March 19, 2017

It started with Mein Kampf. James Q. Whitman, a specialist in comparative law at Yale University, was researching a legal-history question when he pulled Adolf Hitler’s mid-1920s manifesto from the shelf. What jumped out at Whitman was the admiration that Hitler expressed for the United States, a nation that the future Führer lauded as "the one state" that had made progress toward establishing a healthy racial order. Digging deeper, Whitman discovered a neglected story about how the Nazis took inspiration from U.S. racial policies during the making of Germany’s Nuremberg Laws, the anti-Jewish legislation enacted in 1935. That history is the focus of Whitman’s new book, Hitler’s American Model (Princeton University Press). The interview that follows has been edited and condensed.

What’s your core argument in this book?

Scholars have wondered whether there might have been an American influence on the Nazis. The question suggests itself naturally, since, as we all know, America in the era of Jim Crow was the home of an awful lot of ugly racism. But it is really not the right question, because the program introduced by the Nuremberg Laws didn’t involve segregation as such. It involved two other efforts at creating a race order: the creation of new forms of second-class citizenship for Jews, and bans on interracial sex and interracial marriage.

In both of those respects, the Nazis found a lot to admire and imitate in American law. And it was American immigration law in particular that Hitler praised. America also pioneered in the creation of forms of second-class citizenship, especially for blacks, but not only for blacks. There were also forms of second-class citizenship, whether de jure or de facto, that applied to American Indians, Asians, Filipinos, and Puerto Ricans.

What are some examples of specific American laws that influenced the Nazis?

The two relevant Nuremberg Laws are called the Citizenship Law and the Blood Law. The Citizenship Law limited citizenship to persons of German blood. Other persons, in particular Jews, were to have the status only of nationals, not citizens. That idea, that some persons could be nationals but not citizens, played a big role in American law as well. The Nazis talked about it quite a bit. After the Spanish-American War, in 1898, America found itself in possession of the Philippines and Puerto Rico. There was widespread sentiment that Filipinos and Puerto Ricans were, at a minimum, insufficiently civilized to be American citizens. But at the same time there was no provision in American law for anybody to be anything but a citizen. In response, the Supreme Court created a new status for them, called noncitizen nationals.

Did the Nazis borrow from American laws directly?

I can’t say whether they were directly borrowing from the Americans in the Citizenship Law, because I don’t have all the evidence. The really dramatic evidence of direct influence comes with the second of the Nuremberg Laws, the Blood Law. This was the one on sex and marriage. We’re in the high age of eugenics here. The idea that superior races and inferior races should not sexually intermingle was pretty widespread. But American statutes did something really unusual, which was to criminalize mixed marriage. That was of intense interest to the Nazis because their program, too, involved criminalizing mixed marriage. We know that they took an interest in these U.S. statutes because we have a stenographic transcript of a planning meeting for the Nuremberg Laws. The strong advocates for the use of American models were the most radical Nazis.

You also write that some Nazis felt that the American legal example went too far. The Nazis were very interested in the way Americans classified members of the different races, defining who counted as black or Asian or whatever it might be. And there, in particular, the most far-reaching Nazi definition of who counted as a Jew was less than what you found in almost any American state. The most far-reaching Nazi definition, which dates to 1933, held that a Jew was anybody who had one Jewish grandparent. There were a few American states that made the same provision with regard to blacks. But most of them went much further than that. At the extreme, American states had what’s called the one-drop rule. That is, one drop of black blood makes you black.

Why have scholars neglected this story?

There have been obstacles to the discussion of this. For almost all Germans, it remains fundamentally important not to do scholarship that might be interpreted as denying German responsibility for Nazi crimes. A German professor friend of mine said that any German who wrote a book like this would be regarded as a wild-eyed anti-American ideologue.

Does this story matter today?

It may seem of particular timeliness at a moment when the "alt-right" seems to have put questions of white supremacy back on the table. It’s worth remembering how deep these traditions run in the United States.

There are also, beyond that, important lessons about American legal culture. What the radical Nazis touted about American law was its open-endedness, its adaptability, its common-law pragmatism, and in particular its permeability to political influence. The feature of American law that the radical Nazis admired is still present, in particular in American criminal punishment — which is spectacularly and very nearly uniquely harsh. That fact has a great deal to do with its exceptional vulnerability to political pressure, whether through tough-on-crime politics or through politicization of the judiciary and prosecutorial corps. And, of course, the race problem is very much present in American criminal justice as well. What we see there is the same disturbing pattern of politicization that radical Nazis admired in the 1930s. To that extent, working through the details of this disturbing episode in the 1930s helps us to recognize the roots and the depth of our problems today.

Marc Parry is a senior reporter at The Chronicle.