Op-Ed. When the Nazis wrote the Nuremberg laws, they looked to racist American statutes
James Q. Whitman / February 22, 2017 / Los Angeles Times
The European far right sees much to admire in the United States, with political leaders such as Marine le Pen of France and Geert Wilders of the Netherlands celebrating events — such as the recent presidential election — that seem to bode well for their brand of ethno-nationalism. Is this cross-Atlantic bond unprecedented? A sharp break with the past? If it seems so, that’s only because we rarely acknowledge America’s place in the extremist vanguard — its history as a model, even, for the very worst European excesses.
In the late 1920s, Adolf Hitler declared in “Mein Kampf” that America was the "one state" making progress toward the creation of a healthy race-based order. He had in mind U.S. immigration law, which featured a quota system designed , as Nazi lawyers observed, to preserve the dominance of "Nordic" blood in the United States.
The American commitment to putting race at the center of immigration policy reached back to the Naturalization Act of 1790, which opened citizenship to "any alien, being a free white person." But immigration was only part of what made the U.S. a world leader in racist law in the age of Hitler.
Then as now, the U.S. was the home of a uniquely bold and creative legal culture, and it was harnessed in the service of white supremacy. Legislators crafted anti-miscegenation statutes in 30 states, some of which threatened severe criminal punishment for interracial marriage. And they developed American racial classifications, some of which deemed any person with even "one drop" of black blood to belong to the disfavored race. Widely denied the right to vote through clever devices like literacy tests, blacks were de facto second-class citizens. American lawyers also invented new forms of de jure second-class citizenship for Filipinos, Puerto Ricans and more.
The ugly irony is that when the Nazis rejected American law, it was often because they found it too harsh.
European racists followed these toxic innovations with keen interest. Of course they were well aware that America had strong egalitarian traditions, and many of them predicted that American race law would prove inadequate to stem the rising tide of race-mixing. Hitler, however, was cautiously hopeful about America's future as a white supremacist state, and after he took power in 1933 his Nazi Party displayed the same attitude.
This is the background to a disturbing story: the story of the American influence on the Nuremberg Laws, the notorious anti-Jewish legislation proclaimed amid the pageantry of the Nazi Party Rally at Nuremberg in September of 1935.
At a crucial 1934 planning meeting for the Nuremberg system, the Minister of Justice presented a memorandum on American law. According to a transcript, he led a detailed discussion of miscegenation statutes from all over the United States. Moreover it is clear that the most radical Nazis were the most eager advocates of American practices. Roland Freisler, who would become president of the Nazi People's Court, declared that American jurisprudence "would suit us perfectly."
And the ugly irony is that when the Nazis rejected American law, it was often because they found it too harsh. For example, Nazi observers shuddered at the "human hardness" of the “one drop” rule, which classified people "of predominantly white appearance" as blacks. To them, American racism was sometimes simply too inhumane.
That may sound implausible — too awful to believe — but in their early years in power, the Nazis were not yet contemplating the "final solution.” At first, they had a different fate in mind for the German Jewry: Jews were to be reduced to second-class citizenship and punished criminally if they sought to marry or engage in sexual contact with "Aryans." The ultimate goal was to terrify Germany's Jews into emigrating.
And for that program, America offered the obvious model — even if, as one Nazi lawyer put it in 1936, the Americans had "so far" not persecuted their Jews. Of course the Nazis did not simply do a cut-and-paste job, in part because much of American law avoided open racism. (Laws intended to keep blacks from the polls did not explicitly name their target.) But American antimiscegenation law was frankly racist, and the Nazi criminalization of intermarriage followed the American lead.
In a sense, this ugly tale about the history of American racism is also about American innovation gone awry. Today, we’re leaders in the creation of corporate law; back then, it was race law. Other countries, such as Australia, put legislative obstacles in the way of mixed marriages, but the United States went so far as to threaten long prison terms.
And we must not forget how tenaciously the racist rulebook that the Nazis admired held on in the United States. Antimiscegenation laws were only struck down at the tail end of the civil rights era, in 1967. Race-based immigration policies did not fully end until 1968 — long after the Greatest Generation stormed the beaches of Normandy and liberated Nazi death camps.
James Q. Whitman is a professor of comparative and foreign law at Yale Law School. He is the author of “Hitler’s American Model: The United States and the Making of Nazi Race Law.”