James Whitman : Are Nazis as American as apple pie?- Yale Professor Asks

James Whitman

 

Professor James Q. Whitman ’88 examines the relationship between early 20th-century American race law and the racial policy of Nazi Germany in his new book, Hitler’s American Model.

James Whitman

James Whitman

Is the United States threatened by Nazism? The short answer is no, notwithstanding the frightening events in Charlottesville, Va., this past weekend.

In Charlottesville, the home of the University of Virginia – founded by Thomas Jefferson – white nationalists, separatists, neo-Nazis, members of the Ku Klux Klan and other like-minded groups rallied behind Swastika banners and marched in a Nazi-style torchlight procession. By the end of the next day, there had also been thuggish violence. One white supremacist went so far as to drive a car into a crowd of counter-protesters, killing one and injuring 19 others.

The groups responsible for the violence in Charlottesville revelled in U.S. President Donald Trump’s election last November. And he often hesitated to disavow them; during the election campaign, when former KKK Grand Wizard David Duke publicly backed him, Mr. Trump was scandalously slow to reject Mr. Duke and his followers. The President also repeatedly incited violence during the campaign, while evincing a bottomless affection for authoritarian leaders such as Russian President Vladimir Putin.

After the events in Charlottesville, Mr. Trump initially offered a bland statement that condemned hate “on many sides,” thereby drawing a moral equivalence between the racists and those who gathered to oppose them. Two days later, under intensifying pressure, Mr. Trump issued a more forceful statement, in which he explicitly condemned the KKK, neo-Nazis and other white supremacists, only to revert the following day to blaming “both sides” for the violence.

All of this is abhorrent. But any sober observer can see that the U.S. is still a long way from the nightmarish atmosphere of Germany in 1933. American democratic institutions are holding up, just as they did in the crisis years of the 1930s. Opposition parties have not been banned, and the courts have not lost their independent authority.

Moreover, Mr. Trump is not the supreme leader of a political party with a paramilitary arm. There are no facilities such as Dachau, Auschwitz or Treblinka under construction. Even Mr. Trump’s planned border wall with Mexico remains stuck in the planning stage, with no funding from the U.S. Congress. And Congress is not about to pass an Enabling Act conferring dictatorial powers on the President, as the Reichstag did for Hitler in March, 1933. Last but not least, the American press is more tenacious and energized than it has been in years.

Mr. Trump’s yearning for authoritarian rule is clear for all to see. But he will not achieve it. There will be no Nazi dictatorship in America.

But whether America is threatened by such a dictatorship is not the right question. American democratic institutions might be holding up, but history has taught us that they are not immune to the machinations of racially virulent political programs. In fact, the U.S produced some of the laws that would later serve as a foundation for the Nazi movement in Germany.

America, with its vibrant democratic institutions, was the leading racist jurisdiction in the world in the early 20th century. An obvious example is the Jim Crow South, where white legislatures passed laws imposing racial segregation and reversing many of the gains of the post-Civil War Reconstruction period. But that is hardly the only example. Those on the far right in Europe also admired America’s early-20th-century immigration policies, which were designed to exclude “undesirable” races. In his manifesto Mein Kampf, Hitler singled out America as “the one state” that was progressing toward the creation of a healthy race-based order.

Indeed, during this period, 30 U.S. states had anti-miscegenation laws intended to safeguard racial purity. America’s democratic institutions did not stand in the way of such policies in the early 20th century. On the contrary, anti-miscegenation laws were the product of America’s democratic system, which gave full voice to many Americans’ racism. And U.S. courts upheld these legal innovations, using flexible common-law precedents to decide who would acquire the privileged status of “white.”

The Nazis paid close attention. As they concocted their own racial statutes – the Nuremberg Laws of 1935 – they pored over American race law as a model.

So today, instead of asking whether American institutions will survive the Trump presidency, we must ask how American institutions can be put in the service of wrongful ends. After all, while America’s early-20th-century race laws are gone, it still has the same overheated democratic order and common-law flexibility that it had back then. These institutions might no longer produce Jim Crow laws; but the American criminal-justice system, for example, remains a poster child for institutionalized racism.

Americans should be ashamed that their country’s institutions laid the groundwork for Nazi race law. But they should not be worrying about the threat of renascent Nazism, despite Mr. Trump’s clear ambivalence in condemning white supremacists. Rather, Americans should worry about the potential of their institutions to facilitate evils that are, as loath as we are to admit it, as American as apple pie.

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James Whitman

According to Whitman, in the early 1930s Nazi lawyers took a sustained interest in American immigration law, the American law of second class-citizenship, American anti-miscegenation law, and the American approach to racial classifications. In this early period of their rule, the Nazis were not yet contemplating genocide. The Nuremberg Laws of 1935 had a different aim: They reduced Jews to second-class citizens, and criminalized interracial marriage and sex. In both respects, and especially with regard to anti-miscegenation, the US offered the leading model in the world.

Hitler himself had already praised American law in Mein Kampf, and Nazi lawyers did the same after the Party came to power in 1933. In fact, as Whitman shows, it was the most radical Nazis who were the most eager advocates of the American model. And it is an ironic truth that when Nazis rejected American practices, it was sometimes because they found them, not too enlightened, but too harsh.

Of course the Nazis also saw plenty to despise in America’s liberal traditions. The history that Whitman recounts is by no means one of unmixed Nazi admiration for the United States. Nevertheless there is much evidence of deep Nazi engagement with American race law in the early 1930s—too much to ignore.

“Interesting and eye opening,” said Thomas McClung, of the New York Journal of Books. “In spite of the Nazis’ disdain, to put it mildly, for our stated and evident liberal and democratic principles, they eagerly looked to the United States as the prime example for their own goals of protecting the blood, restricting citizenship, and banning mixed marriages. Reading this book could make many Americans doubt the possibility of ever forming a more perfect union with such a legacy.”

“This is a brilliant, erudite, and disturbing book,” said Lawrence M. Friedman, author of A History of American Law. “By looking at the United States through the eyes of Nazi legal theorists in the 1930s, Whitman contributes to our understanding of this darkest chapter of German legal history. Moreover, he shines a light through this unlikely lens on the worst sins of our own country’s past.”

Whitman is the Ford Foundation Professor of Comparative and Foreign Law at Yale Law School. He earned his B.A. and J.D. from Yale University and Law School and also holds an M.A. in European History from Columbia University and a Ph.D. in Intellectual History from the University of Chicago. From 1988-1989, Professor Whitman clerked for the Hon. Ralph K. Winter of the Second Circuit Court of Appeals, then began his teaching career at Stanford University Law School. He has taught as a visiting professor at universities in France and Italy and has been a professor at Yale Law School since 1994. In 1996 he became the Ford Foundation Professor of Comparative and Foreign Law. Professor Whitman’s many books and articles have been published internationally and across disciplines. He has also been awarded numerous prizes and fellowships throughout his career

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James Whitman

James Whitman

James Whitman

James Whitman

James Whitman