Hitler’s American Model: The United States and the Making of Nazi Race Law
At the beginning of his introduction to Hitler’s American Model, Yale law professor James Q. Whitman readies himself to unsettle the veiled “we” who “think of America, whatever its undeniable faults, as the home of liberty and democracy” (3). This hubris is a small stain on an otherwise excellent book. Those readers most inclined to read his work—scholars and students of early twentieth-century American and German politics and racial history—need not be disabused of a romantic notion of American exceptionalism. This says nothing of those whose lives are defined by the “undeniable faults” of American democratic liberalism Whitman mentions; put plainly, #BlackLivesMatter activists and Mexican immigrants do not need help from Whitman to feel unsettled.
If we want to know how the Nuremberg Laws built the train tracks to Auschwitz, Whitman has an answer: United States legal precedent provided the tools and blueprints.
The fascination with Nazi criminality is as much curiosity with smaller-scale atrocities that taken together comprise the Holocaust, as it is about the sheer scale and speed with which the bureaucratic machine achieved these ends. In the present, when the unwieldy neoliberal apparatus of the university struggles to construct a building within a single calendar year, I admit to a perverse admiration for a polity that can achieve world-shifting ambitions with such efficiency. Counting myself among the disenchanted, I wonder less how racist ambitions of the Nazi kind could be imagined, instead struck by how they could have ever been materially achieved. Whitman comes at this question from the side, dispassionately working out the legal scaffolding that opened the pathway for the genocidal applications of state policy. If we want to know how the Nuremberg Laws built the train tracks to Auschwitz, Whitman has an answer: United States legal precedent provided the tools and blueprints.
In June 1934, the Third Reich’s legal experts convened the Commission on Criminal Law Reform, a summit of thinkers who would ultimately produce the tripartite Nuremberg Laws. In what amounts to a two-chapter study of the conservative and radical policymakers engaged in this process, bookended by a short introduction and conclusion, Whitman describes the ways in which American laws were invoked, rewritten, and codified for Nazi purposes. Against the circumspect conservatives who were resistant to extremities of persecution, the radicals in attendance offered effective American applications of race law as examples so that the commission might see how neatly race-hatred could be laid out in policy. These deliberations resulted in three legal policies: first, the veneration of the swastika as the emblem of the Third Reich; second, the legal exclusion of Jews and other undesirables from Aryan and German citizenship (discussed, with the first law, in chapter one); and third, rules against miscegenation to protect “German Blood and Honor” (discussed in chapter two). When the Reichstag enshrined these laws as state policy in 1935, Whitman would have us understand that historically racist American legislation, most recently in Jim Crow-era policies, can and must be understood as an important forbearer of the madness yet to come.
Whitman’s argument is most compelling when he allows his archive to speak for itself, using the transcript of the Commission and works of Nazi legal theory to make the linkages to American precedent explicit. As he shows, the American model is useful beyond the example of Jim Crow. Whitman cites Edgar Saebisch’s Nazi exposition on Volk citizenship, in his instructive message that “any state, which like [America] adopts a posture of fundamental rejection of would-be immigrants…shows that it values membership in a [Volk community] as a precious good” (55). This is precisely the point for Whitman: the Nazi adoption of an “American model” is more than importing Jim Crow codes and replacing Negro with Jew. Rather, American history in sum total—the effective mass murder and physical and legal marginalization of American Indians, restrictive immigration policies like the Chinese Exclusion Act of 1882—was useful in imagining the possibilities for formal racial stratification and state violence.
What might have been a dry recounting of the transatlantic appropriation of racial policies is enlivened by the characters that animate Whitman’s narrative. Among them, we are introduced to Heinrich Krieger, a University of Arkansas-trained German lawyer who served as an invaluable resource for policymakers considering the utility of the American example, struggling to work out how Jim Crow operated on the ground. But Krieger’s thinking on American racial policies extended beyond his firsthand experiences below the Mason-Dixon line. In a George Washington Law Review article Krieger considers American Indian law in depth, arguing that “it simply had to be understood as a species of race law, founded in the unacknowledged conviction that Indians were racially different and therefore necessarily subject to a distinct legal regime” (115). Krieger’s significance to Nuremberg deliberations and his role in Nazi political thought provides some account for how the American treatment of Indians served as a precedent for German expansion east.
When the Reichstag enshrined these laws as state policy in 1935, Whitman would have us understand that historically racist American legislation, most recently in Jim Crow-era policies, can and must be understood as an important forbearer of the madness yet to come.
There is also Roland Freisler, lawyer and eventual president of the Nazi People’s Court, who provides the epigraph to the book: “‘The jurisprudence would suit us perfectly with a single exception. Over there [in the United States] they have in mind practically speaking, only coloreds and half-coloreds, which includes mestizos and mulattoes, but the Jews, who are also of interest to us, are not reckoned among the colored’” (1). If this excerpt of Freisler’s speech does not give a clear sense of his character, Whitman’s description of him as “a man whose name endured as a byword for twentieth-century savagery” certainly paints a picture (1). With Freisler, Krieger, and others, Hitler’s American Model puts the lie to intentionalism in Holocaust history. It is simply impossible to locate total culpability in the hands of the infamous core of Nazi elite when the kind of grassroots legal thought and collective policymaking that took place at Nuremberg served as the foundation for the worst excesses of the state.
Aside from its insight into the American context, the book inspires a depth of inquiry beyond the context of Whitman’s analysis. For readers, embedded within his demonstration of how American race law was recycled at Nuremberg is the implicit consideration of the dialectical recycling of racial policies outside of the American-German context.
Although Whitman set out on to do a comparative analysis, his succinct exposition of American racial law, including and beyond Jim Crow, is a significant secondary benefit. If we cannot fully understand Nazi race law without Jim Crow and its antecedents, as Whitman argues, then we are equally unable to understand Jim Crow without these very antecedents, to say nothing of racial policies against other groups that were contemporaneous and extended beyond the American South. While this goes to show the unoriginality of racism, Hitler’s American Model is invaluable in comprehending the creative political maneuvering deployed, across time and international boundaries, to satisfy this racism.
Aside from its insight into the American context, the book inspires a depth of inquiry beyond the context of Whitman’s analysis. For readers, embedded within his demonstration of how American race law was recycled at Nuremberg is the implicit consideration of the dialectical recycling of racial policies outside of the American-German context. Where else did American race law serve as a model? What models informed the American development of racial policy? As I mentioned at the opening of this review, Whitman’s audience is likely to be underwhelmed by the suggestion that these are questions worth asking and probably has one or more answers at the ready. However, Hitler’s American Model offers a methodology and structure, an engagement with archive that in its close reading and brevity offers a fresh and accessible set of answers.
In a few short days, I will join a small group of historians and cultural studies scholars for a United States Holocaust Memorial Museum seminar, “Racial Practice: Theory, Policy, and Execution in Nazi Germany and the Jim Crow South.” The plans for this seminar were underway before Whitman provided his readers with the “hard to digest” “idea that American law might have exerted any sort of direct influence on the Nazi program of racial persecution and oppression” (3). But though Hitler’s American Model cannot be credited with inventing this inquiry—however much his tone implies it should be—his book serves as evidence that Whitman would make a terrific addition to the group. And though I do not expect to have the pleasure of his company, my own contributions to the conversation will be enriched by my ability to draw on the text’s insights. If it is unremarkable for its failure to unsettle, Whitman’s account of the formal linkages between Nazi and American policy is exceptional for its comprehensive engagement of primary source material, succinct and readable for specialist and non-specialist alike.
