The role of the medical profession in service to the Nazi regime has been well documented and examined; less attention, at least for the general reader, has been given to the lawyers and jurists who provided the legal structure for Germany’s fascist years. Now, however, James. Q. Whitman, a professor of Comparative and Foreign Law at Yale University’s Law School, looks at how German legalists crafted the anti-Jewish Nuremberg Laws. As his rather shocking title has it, the Nazi lawyers found much encouragement in, of all places, the United States.
From the earliest days of the Nazi period German legal theorists were charged with drawing up laws that would disadvantage, disenfranchise and separate Germany’s Jews from the general population. To protect the “purity” of German blood, the objectives of such a program were segregation and the encouragement of Jewish emigration. (The policy of extermination would come later.) Aside from certain practices in medieval Europe, the German lawyers had no homegrown precedent for creating laws that would foster a massive deprivation of rights.
Moreover, the Nazis were keen to have a corresponding or supporting legal system to point to in order to help deflect foreign criticism of Nazi racial policies. Looking for guidance, Prof. Whitman says, they found a ready model in racist America.
That is at the very least a distressing proposition for many of us today, which is why Whitman repeatedly stresses that America was in no way responsible for inspiring the Nazis’ racist mindset. The Nazis needed no such inspiration. But the American experience did indeed provide direction and to some extent influence. Indeed, Germans in many respects were well disposed to follow the Americans’ lead. Until they were at war with the Yanks, Germans found much to admire in what they considered a “fellow Nordic” nation, which after all had more citizens of German background than of any other ethnic origin. Germany was the largest overseas market for Hollywood movies, and Germans were deeply enamored of American assembly line manufacturing.
They also admired the racism. Nazis could not quite understand the American penchant for liberalism, democracy, equality and what Germans considered other such misguided notions, including an unaccountable toleration of Jews. Nazis did, of course, approve of American universities’ quotas on Jewish students. And they did appreciate American consciousness of race. As early as 1925, Hitler was writing approvingly in “Mein Kampf” of the US as the “one state” that had made progress toward the kind of racist order the Nazis would promote.
Unhappily, the supporting evidence was there. As early as 1691, for example, the Commonwealth of Virginia adopted the first of America’s anti-miscegenation statutes.
No fewer than 30 of the states would eventually have similar laws outlawing interracial marriage, and these would remain in force until the mid-1960s. The First Congress meanwhile limited naturalization to “any alien, being a free white person.”
Congress specifically excluded Chinese immigration in 1882, and the Immigration Act of 1924 favored “Nordic” immigrants over southern and eastern Europeans. The US, moreover, showed how a nation could rule over whole populations – such as Native Americans, Filipinos and Puerto Ricans – without allowing them citizenship. Then there were the Jim Crow laws in the southern states that mandated separate public facilities for whites and blacks and that kept African Americans from the voting booths.
With typical Teutonic thoroughness, the German jurists studied all of this legislation, generally with approval. They further approved the picture of the southern states as essentially a society of one political party (the Democrats) and even found much to like in Franklin D. Roosevelt’s first 100 days in office, when his New Deal was instituted in a veritable blitzkrieg of rubber-stamped legislation. Germans also had long admired the Americans’ westward expansion across their continent, which would serve as a handy model for the Nazis’ march eastward across Europe. This was no big stretch of the imagination for a generation raised on the German writer Karl May’s popular “Old Shatterhand” novels set in America’s Wild West: Hitler was an ardent fan.
But such approval and admiration were neither automatic nor total. For example, Karl Klee, the Presiding Criminal Court Judge and professor of Criminal Law at the University of Berlin, fretted that Jim Crow laws simply mandated separation of the races without sufficient acknowledgement of the superiority of the white race. Others worried whether or not marriage between a Jew and an Aryan could simply be outlawed or actually be made a criminal matter, as hitherto the only basis for criminalizing a marriage was bigamy or deception. And what would this mean for intermarriages that predated banning? Could they be declared null and void? THIS IN turn led to the knotty question of how to define a Jew. Here the American model on race proved problematic. Legislation in many southern states held that a single drop of “black blood” was enough to define an individual as African American.
For Bernhard Losener, who was among the primary authors of the Nuremberg Laws on citizenship and blood purity, such a definition was too extreme. The Reich Citizenship Law that he helped draft would ultimately define a Jew as a person having three Jewish grandparents; persons who had two Jewish grandparents would be considered “mongrels” who nevertheless “counted” as Jews. This, however, did not satisfy all of Losener’s colleagues. Although he was a diehard antisemite, Losener was eventually deemed too moderate on the race issue and was expelled from the Nazi Party.
Interestingly, when it came to purging the German population of persons with mental and physical disabilities, the Nazis again looked to the US. In one of their first pieces of legislation, the Nazis passed the Law to Prevent the Birth of Offspring with Hereditary Defects. Before and after the adoption of this law, Nazi eugenicists regularly consulted the work of American counterparts like the white supremacists Lothrop Stoddard, Madison Grant and others. (Nazi eugenicist-murderers would invoke their American mentors in their defense during the Nuremberg trials.) Whitman, however, mentions eugenics only in passing, possibly because that topic was explored in considerable detail in Stefan Kuhl’s 1994 study, “The Nazi Connection: Eugenics, American Racism and German National Socialism,” and because Whitman’s focus is less on hygiene and more on fantastical Nazi notions of “racial purity.”
Thus in “Hitler’s American Model,” the author stays fixed on the so-called “Prussian Memorandum” of 1933, which outlined the framework for the regime’s eventual Blood Law, and Whitman’s own translation of the transcript of a Commission on Criminal Law Reform meeting the following year, in which the legal niceties of the Nazis anti-Jewish measures were thrashed out. That meeting was chaired by Justice Minister Franz Gurtner, and included Roland Freisler, the future president of the Nazi People’s Court, Losener, and other lawyer/criminals mentioned above. Some of these would later attend the Wannsee Conference, which in 1942 approved the genocide of the Jews. From beginning to end, American racist law and custom were repeatedly invoked by these German legal experts. To a much lesser extent these Nazi race theorists found some inspiration in attitudes and practices of British and other imperial powers. But Americans remained the Nazis’ favorite racists, and they exulted in quoting Jefferson and Lincoln on the necessity of separating the races.
In all, Whitman’s is a dispiriting story.
“There was of course,” he writes, “no direct American influence on Nazi race laws, or at least no meaningful influence. Whatever similarities there may have been, the Nazis were the authors of their own monstrous work; certainly America had nothing to teach Hitler.” And yet Whitman goes on, “Awful as it may be to contemplate […] the reality is that the Nazis took a sustained, significant and sometimes eager interest in the American example in race laws. They most certainly were interested in learning from America. In fact […] it was the most radical Nazis who pushed most energetically for the exploitation of American models.”
Dispiriting and saddening, “Hitler’s American Model” is a cool, lawyerly look at some decidedly outrageous history.