By Donald Thoresen
James Q. Whitman
Hitler’s American Model: The United States and the Making of Nazi Race Law
Princeton: Princeton University Press, 2017
It is no secret that the history of law in the United States is one of complex, often contradictory, approaches to race. Nor is it a secret that, beginning in the nineteenth century, scientific examinations of race and its effects on the country’s social fabric resulted in a great deal of effort on the part of scholars, politicians, social reformers, and others to solve this recently concretized and articulated race problem. Eugenics and race science during the Progressive Era (which I have written about here) were no mere historical footnotes. They were seen as pressing issues and prompted much debate on methods for ensuring the country’s future racial health and securing the resultant social benefits.
Such considerations were certainly not confined to the United States. Due to the roughly concurrent rise of political race consciousness in Germany as well as in the American progressive movement and, more importantly, the general history of American race relations, numerous efforts have been made by scholars to posit connections between the Third Reich and American “white supremacy.” The latest attempt to delineate these associations is by James Q. Whitman, Ford Foundation Professor of Comparative and Foreign Law at Yale Law School. He is of the opinion that there is indeed a very real connection between American jurisprudence concerning race in the early twentieth century and the race laws of the Third Reich. He is correct. But, as would be expected, his book is not actually an attempt at professional scholarship but is instead a more or less open attack on “white supremacy.” Even setting politics aside, it is one of the most unprofessional academic books in recent memory, and Yale Law School should be thoroughly embarrassed to count him among its professors.
Dr. Whitman’s claim centers around one basic assertion: that America had strict race laws which were studied and admired by National Socialists and which provided inspiration for the Nuremberg Laws. Even the Jewish author Joshua Muravchik observed, in an otherwise banal and typically hypersensitive review of the book, that Dr. Whitman’s book is little more than yet another example of reductio ad Hitlerum.[1] Dr. Whitman throws as much against the wall as he can in the hope that some of it will stick so that America and, specifically, American whites (rather than the Third Reich, which is forever beyond the scope of objectivity in his emasculated mind) are the ones who really bear the brunt of his critique. He offers the race laws of National Socialism as mirror images of American “white supremacy” not to broaden our understanding of any fundamental historical issues, but simply to shame white America. While it is true that there is a connection to investigate, Dr. Whitman deals with it on only the most superficial level. He fails to provide much adequately deep context surrounding either American or German race law. Both seem, for him, to have arisen from white ignorance and/or malevolence and little else; he believes these laws to be entirely irrational.
In the Introduction, he begins to appeal to the uncritical reader (of which there will doubtless be many, due to the book’s “kosher” treatment of its subject matter and its college freshman-level depth of thought): “The Nazi persecution of the Jews and others, culminating in the Holocaust, counts for all of us [italics mine] as the supremely horrible crime of the twentieth century, and the notion that Nazi policy makers might have been in some way inspired by American models may seem a bit too awful to contemplate” (p. 2). He universalizes his readership ad nauseum throughout the book. Three pages later we are told that “no one [italics mine] wants the taint of an association with the crimes of Nazism” (p. 5). And in case these statements – and plenty of others – were not enough to browbeat the reader into submission to his moral judgments, he writes of “unsettling evidence” for his claims and describes American eugenicists as “repellant” (p. 9). Further examples of such childishness are frequent.
The book is short. It has only an Introduction, two chapters, and a Conclusion. The two chapters contain the bulk of his actual scholarship, which is minimal. The way the book is written and its broader anti-white message are both ultimately as worthy of critique as the facts he presents, which are not particularly revelatory in any way, but are occasionally interesting. In the first chapter, entitled “Making Nazi Flags and Nazi Citizens,” the author writes:
. . . when Hitler and Göring proclaimed the two new anti-Jewish laws at Nuremberg, they did so in speeches that were decorated with expressions of friendship toward the Roosevelt administration and the United States. And the uncomfortable truth, as we shall see in this chapter and the next, is that the two anti-Jewish measures that we call the Nuremberg Laws today, far from marking a clear rejection of all American values, were crafted in an atmosphere of considerable interest in, and respect for, what the example of American race law had to offer; and they brought German law significantly closer in line with American law than had previously been the case (pp. 18-19).
This is the core of his argument and it is hard to disagree with it. There was mutual admiration between the two countries (or at least large factions within them), especially as regards governmental policies designed to increase the racial health of their respective populations. Many American progressives and eugenicists admired the efforts of Germany to fortify its racial health and, as the author clearly shows, many Germans looked to America for ideas on the practical application of laws to accomplish the same thing in their country.
Dr. Whitman begins by describing the Bremen Incident, a rather obscure event in the lead-up to the Second World War in which Jews and Communists rioted over the presence of a German ocean liner displaying a swastika that had arrived in New York City in 1935. The incident is credited by the author as the political foundation of the Nuremberg Laws: a concise, easy story for readers but one which completely fails to encompass the wider historical context of the Laws. Of the thousand rioters, five who “managed to clamber aboard, rip the swastika down, and toss it into the Hudson River” were arrested (p. 20). They were freed by Louis Brodsky, a Jewish judge with a track record of classic Jewish behavior, including “permitting the distribution of pornographic novels” and, in the opinion of the author, “heroically” releasing two strippers who had been arrested for dancing nude at a club in Greenwich Village (p. 21). Unsurprisingly, Brodsky made use of the Bremen Incident to express his views on the Nazis:
The swastika, he wrote, was a “black flag of piracy,” and it stood for everything the United States opposed. To fly it was “a gratuitously brazen flaunting of an emblem which symbolizes all that is antithetical to American ideals of the God given and inalienable rights of all peoples to life, liberty and the pursuit of happiness . . . [Nazism represents] a revolt against civilization – in brief, if I may borrow a biological concept, an atavistic throwback to pre-medieval, if not barbaric, social and political condition.” These were stirring words, true in every particular; God bless Louis Brodsky for uttering them [italics mine] . . . (pp. 22-23)
The author claims to view both the prisoners’ release and the judge’s “activist” statement as legally problematic (part of a broader conversation on law itself, which will be discussed below), but his personal feelings on the opinion are made crystal-clear.
This incident created a diplomatic scandal. The American government issued a statement condemning the actions of the rioters but, in Germany, “Joseph Goebbels had already decided to use the Brodsky opinion for Nazi political purposes” (p. 22). Though anyone familiar with the history of Diaspora Jews in white countries will not be surprised by any of the above, it is still worth noting that Brodsky engaged in both the “current year” argument and the “nation of immigrants” argument to free these, presumably Jewish, criminals while claiming the moral high ground and altering the essence of American history to suit his racial interests. It is also interesting that the author implies that Goebbels was somehow being manipulative by putting this event in a wider political context. One wonders how Dr. Whitman imagines politics works without making use of conceptual thinking and the incorporation of new information into any given broader argument. One is reminded of the myriad recent examples of politicians being accused of capitalizing on tragedies in order to push a particular political narrative, as if politics exists in a vacuum and relevant evidence, when deemed offensive by elites, should be disconnected from core arguments.
As it so happened, “Secretary of State Cordell Hull issued a formal apology to the Reich on the very day that the Nuremberg Laws were proclaimed” (p. 22). It was also around this time that the battle between German conservatives and National Socialists was coming to a head. The author believes that this incident caused the swastika flag to take on greater symbolic importance in Germany, which, having previously been displayed in public next to the Imperial tricolor flag, prompted the decision to make it the sole flag of Germany at the Nuremberg rally that year. So, for the author, in a strikingly odd, Judeocentric understanding of history, this means that Louis Brodsky’s release of five anti-Nazi rioters prompted the Nuremberg Laws: Goebbels had expressed his anger at the Bremen Incident by describing it as an insult to the German flag – which it certainly was (although the word “flag” was likely used metonymically as well as literally, something which the author somehow fails to grasp) – and thus the Nuremberg Laws were born. Any reader, regardless of political ideology, should immediately see this as an irresponsibly simple approach to history.
The author then digs deeper into the Citizenship Law, the second part of the Nuremberg Laws, and its connection to American law. He begins with American immigration laws which were race- and ideology-based (anarchists, for example, were excluded), and also included eugenic measures (such as the exclusion of idiots). He makes no attempt to contextualize them and quickly moves on to the concept of second-class citizenship in America and the fascination it held for Germans. He mentions voting restrictions designed to deter blacks from acquiring political influence as a primary example. Germans viewed the American black problem as somewhat analogous to their Jew problem; that is, as an alien race which was threatening the host population and attempting to gain influence over it. The author writes:
. . . when Nazi lawyers considered the American deprivation of black rights, they saw bizarrely, a precisely parallel effort to combat black “influence.” For them, American blacks were not a desperately oppressed and impoverished population, but a menacing “alien race” of invaders that threatened to get “the upper hand,” and therefore had to be thwarted. (This lunatic opinion [italics mine], it should be said, was one that Nazis shared with American racists) (pp. 66-67).
There were numerous German publications detailing laws about blacks in America, including at least one which showed a state-by-state breakdown of various Jim Crow laws (pp. 60-61). Though this is probably the most obvious example of American influence on National Socialist thought, the legal recognition of the right to treat the people of conquered territories as “non-citizen nationals” was equally interesting to National Socialists (p. 40). German scholars were particularly interested in the latter, especially the Insular Cases, in which popular resistance to the granting of citizenship to Filipinos prompted the Supreme Court to approve of second-class citizenship for these people, in contradiction to American law. The flexibility, attention to nuance, and the incorporation of broader social context which American courts exhibited was seen as an important legal development that could be utilized in Germany.
After describing in very little depth the complexities and rationale behind the implementation of these various American race laws, he spends the rest of the chapter making connections between them, Adolf Hitler, and National Socialism. He quotes Hitler in Mein Kampf writing positively about these laws:
There is currently one state in which one can observe at least weak beginnings of a better conception [of citizenship]. This is of course not our exemplary German Republic, but the American Union, in which an effort is being made to consider the dictates of reason to at least some extent. The American Union categorically refuses the immigration of physically unhealthy elements, and simply excludes the immigration of certain races. In these respects America already pays obeisance, at least in tentative first steps, to the characteristic völkisch conception of the state (pp. 45-46).
Hitler naïvely thought that America had protected itself from the racial degeneration that was infecting Europe. He and others also expressed admiration for American westward expansion. America, the author argues, fit well into Hitler’s conception of the new German state based on a racially homogeneous population together with sufficient territorial mass. The practicality of implementing different concepts of citizenship and political “belonging” were at the forefront of National Socialist thought, and there is no question that they looked to America for examples of how this would work.
Further examples of positive statements about America’s handling of its race problem by National Socialists are cited by Dr. Whitman, including quotes from articles in the National Socialist Handbook for Law and Legislation, in which numerous examinations of the American model appeared. The lawyer Edgar Saebisch, for example, wrote positively about the Cable Act of 1922 (repealed in 1930), which stripped American women of their citizenship if they married “noncitizen Asian men” (p. 58). In this discussion of marital race law, he brings up the case of Johann von Leers, a lawyer who became a National Socialist early on and was considered one of Germany’s leading experts on Jews. He does this both to demonstrate American influence on the Nuremberg Laws and to provide an example of ideological hypocrisy. Leers supported the idea of revoking the citizenship of women who opted to marry outside of their race and wrote approvingly of a British law that revoked the citizenship of any woman who married a Muslim who was not a British citizen. After the war, he fled to Argentina and then Egypt, “where he became an advisor on anti-Israel propaganda to Gamal Abdel Nasser” and, believing that “Christian Europe had abandoned the world-historical struggle against the Jews,” became a Muslim himself (pp. 55-57). The failure of von Leers to live up to National Socialist standards certainly does not mean that the standards are incorrect but, of course, the author takes delight in the telling of this story.[2]
The chapter ends with the author using contemporary quotes from European observers who suggested that America was a fascist state. This is entirely false, as any responsible historian of fascism (or indeed any historian of America) will attest. The author might or might not be aware of this fact (he chooses not to interject his opinion here), but includes this additional commentary knowing full well that for the average reader, “fascist” is synonymous with “evil,” and that the association will already have embedded itself in the reader’s mind. Dr. Whitman also finally makes clear, after implying otherwise for dozens of pages, that National Socialists did not technically borrow from American law, but were only inspired by it. He writes:
Comparative law influence is not just a matter of lifting particular regulations, copying particular paragraphs, or transplanting particular institutions. Lawyers, even Nazi lawyers [italics mine], need a sense of the propriety and necessity of their law, and the presence of foreign parallels can provide salutary comfort and inspiration. Modern lawyers in particular often want to believe that they are soldiering toward a better future – and evidence that other countries are soldiering toward the same better future, in however bumbling a way, matters to them. This is perhaps especially true of lawyers plunged into a self-consciously revolutionary situation (p. 72).
One can almost hear the gears of his lawyerly mind shift as he attempts to shield himself from the consequences of his bad writing. He admits that he must turn away from the Citizenship Law in order to find “more provocative evidence of something that looks more like borrowing . . .” (p. 72).
The second chapter is entitled “Protecting Nazi Blood and Nazi Honor.” In it he deals initially with the Reich Blood Law, the first part of the Nuremberg Laws. As was true for many Americans at the time, the notion of racial degeneration was an urgent concern for Germans. It was believed to be necessary to prevent such degeneration from continuing by legal means and, as with citizenship and immigration, the Nazis turned towards America for examples of how to put effective solutions into practice, something which the author finds “certainly depressing” (p. 77). He also starts to become more explicit in expressing a major underlying theme of the book: that America was even more extreme than the Third Reich when it came to race law (thus virtually guaranteeing that his book will end up on university syllabi across the country). He begins his efforts in this direction by mentioning that the notion of the “one drop rule,” whereby someone was considered black if he displayed the slightest hint of Negroid admixture (a belief which was widely held to be true in America) was rejected as “too extreme” for Nazis (p. 77).
Why was American race law considered too extreme by National Socialists? He doesn’t actually say. What he does do is provide some basic explanations for why some of the laws put into practice in Germany were “less extreme” than those of America. First, there was a strategic conflict between those elements in the Party who were interested in strategic street battles and those, particularly the Party leadership, who wanted the state to have a monopoly on violence; second, there was a conflict between legal radicals, moderates, and conservatives in the Party; and third, there were foreign relations to consider (p. 81). But there is little reason to believe that National Socialists thought that American race law was too extreme in and of itself, only that it was not practical for Germany. Dr. Whitman fails to make this distinction in what is likely a deliberate effort to come up with what amounts to merely a good “sound bite” about American race law. It is not a stretch to imagine gullible, purple-haired college students casually asserting that America was “literally worse than Hitler” after reading such nonsense.
The conflict between street violence and governmental control was seen in both practical political terms and in ideological terms. The author maintains that the National Socialist leadership believed that such actions were “damaging Germany’s international image, and therefore impeding economic recovery,” and that they “reflected a breakdown in the central party control of affairs that was always integral to the Nazi ambitions” (p. 82). He suggests that this was the primary reason for the enactment of the Citizenship Law. If the Party leadership could provide tangible evidence of their handling of these very basic concerns, those National Socialists who enforced their beliefs in the street would then have little reason to do so in the future. The state would become an effective tool of resistance to its domestic enemies, and some of the Party’s wilder elements could be restrained.
He goes into far more depth about the conflicts between National Socialist radical lawyers, moderates, and conservatives, which is the most interesting part of the book in that, for the first time, he provides some broader conceptual context to the subject matter. He begins by discussing the 1933 Prussian Memorandum, an outline for a basic National Socialist doctrine of race law in three parts: Race Treason, Causing Harm to the Honor of the Race, and Race Endangerment. The text of the Prologue, quoted by the author, explains the basis for these laws:
The fundamental principle of the egoistic age of the past, that everyone who bears a human countenance is equal, destroys the race and therewith the life force of the Volk. It is therefore the task of the National Socialist state to check the race-mixing that has been underway in Germany over the course of centuries, and strive toward guaranteeing that Nordic blood, which is still determinative in the German people, should put its distinctive stamp on our life once again (pp. 84-85).
It then goes on to explain that “henceforth no Jews, Negroes, or other coloreds, be absorbed into German blood” but “that the proscription will have no application to currently existing marriages” (p. 85). From the text of the “Causing Harm to the Honor of the Race” section of the memorandum, the author quotes a reference to America:
Causing harm to the honor of the race must also be made criminally punishable. It scandalously flouts the sentiments of the Volk when, for example, German women shamelessly consort with Negroes. That said, the provision is to be limited to cases in which the association takes place in public and occurs in a shameless manner and gives gross offense to the sentiments of the Volk . . . It is well known, for example, that the southern states of North America maintain the most stringent separation between the white populations and the coloreds in both public and personal interactions (p. 86).
For Dr. Whitman, the inclusion of the last statement is proof that American race law was even stricter than what was being proposed in the Prussian Memorandum, and that an awareness of American Jim Crow is evident. He also suggests that the continued legality of prior mixed-race marriages in Germany bolsters this claim. American law often declared mixed-race marriages civilly invalid as well as criminal. So, while it is true that mixed-race marriages were more strictly controlled in America than those in Germany, he fails to recognize that the American laws were more or less organically developed and not decided upon in a committee setting. Surely, this accounts for at least some of the difference.
The internal debate which surrounded these proposals was complicated. Not only were two factions of National Socialists in disagreement, but so too were two different approaches to law itself. Here is where Dr. Whitman’s legal background allows him to provide content of some interest. The Prussian Memorandum increased tension between radicals and legal traditionalists within the Party who, he writes:
. . . [insisted] that the Nazi program of persecution conform to the logic and strictures of the highly developed “legal science” for which Germany was famous. These people were not soapbox political dissidents, but bureaucratic officeholders who displayed the instinctive conservatism of trained jurists, and who succeeded for a while in defending some of the traditional standards of German lawfulness (p. 88).
The problem for the legal traditionalists was how to reconcile the criminalization of mixed-race marriages with the fact that they would still be recognized as valid under civil law: “rewriting the Criminal Code would entail rewriting the Civil Code as well – a daunting proposition for the conventional German jurists” (p. 89). Another problem was how to reconcile the fact that some marriages would be made illegal, but those “grandfathered” in would remain legal. Additionally, German jurists were well aware that the generally accepted Western legal standard was one in which marriage was “ordinarily not a matter for criminal law” (p. 90). The final serious problem with the memorandum was what precisely would be the legal definition of a Jew.
Here again, the author finds that the Germans turned to American law for guidance and uses the transcripts from the meeting of the Commission on Criminal Law Reform on June 5, 1934 as evidence. The meeting was called in order to resolve the legal controversies described above and included radicals, moderates, and conservatives. Prior to the meeting, some of the conservatives in the Party had suggested that education would be preferable to the criminalization of race-mixing. The first man to speak, Fritz Grau, addressed this question with a direct reference to American Jim Crow. The author quotes from the transcript of his presentation:
Other Völker too, one might say, had achieved such a goal [i.e., the elimination of race-mixing through education and enlightenment] essentially through social segregation. That statement is however only correct with certain provisos. Among these other Völker – I am thinking chiefly of North America, which even has statutes along these lines – the problem is a different one, namely the problem of keeping members of colored races at bay, a problem that plays as good as no role for us in Germany. . . It is my conviction that just taking the path of social segregation and separation will never achieve the goal, as long as the Jews in Germany represent a thoroughly extraordinary economic power. As long as they have a voice in economic affairs in our German Fatherland , [. . .] I do not believe that they can really be segregated from the body of the German Volk in the absence of statutory law. This can only be achieved through positive statutory measures that forbid absolutely all sexual mixing of a Jew with a German, and impose severe criminal punishment (p. 99).
As the author observes, it is clear that Grau believed that the Jews in Germany were too powerful to be vulnerable to any version of the Jim Crow laws which kept American blacks in check. Further discussion of American race law ensued, with each side referencing it and demonstrating beyond a shadow of a doubt that National Socialists were very familiar with it. This alone proves the author’s thesis. However, as mentioned earlier, the notion that American race law was “too extreme” for Germany is ludicrous. Dr. Whitman refutes this – his own assertion – by including transcripts from this meeting which clearly demonstrate that it was not ethical considerations but rather practicality within a German context which prompted the National Socialists to reject American-style segregation. However, this is not to say that American race law provided no real influence.
One particularly interesting example of this was an issue raised by Karl Klee, a professor of criminal law at the University of Berlin. He wondered whether “the new Nazi law regime should be race-based, simply declaring the separation of the races, or racist, declaring the superiority of some races and the inferiority of others” (pp. 103-104). The author writes that some had argued that to declare Jews an inferior race would be unnecessarily antagonistic and would damage Germany’s international reputation. Klee turned to American race law in his response opposing this. He argued that American race law was “unquestionably founded on a belief in racial inferiority,” and that Jim Crow “was the American equivalent of one of the principal ‘race protection’ strategies Nazis were using on the German streets in 1933-34, the boycott” (p. 104). Klee said that American segregation was a “social boycott” designed “against Negroes and others, absolutely certainly on the idea of the inferiority of the other race, in the face of which the purity of the American race must be protected” (p. 104). As the author states, Klee believed that “what the American example showed was that true race-based criminal law ought to be unapologetically racist criminal law” (p. 105).
Perhaps the most interesting issue under discussion at this meeting, however, was the legal implications of the definition of a Jew. A “fundamental principle of German law” was that “criminal law required clear and unambiguous concepts” (p. 105). Here the conservatives argued that, since a clear and unambiguous definition of a Jew had yet to be formulated, judges would be unable to base their rulings on anything other than “vague sentiments of Jew hatred” (p. 105). This, combined with a “presumption of innocence” as a “basic requirement of legality,” placed German race law on very shaky foundations (p. 105). It was this issue that turned the discussion towards competing conceptions of law itself – and, again, towards America.
The radicals argued that traditional German law was simply too wedded to the notion of clear concepts. Roland Freisler, a powerful National Socialist jurist and judge, had much to say about this. For him, race protection was a political issue and did not require a “scientifically satisfactory definition of race” (p. 106). In his response to the objections of the conservative legal traditionalists, he referenced American law:
. . . it is not the case that all states that have to reckon with the possibility of Japanese immigration have spoken of the Japanese, but some have spoken of Mongols, even though it is without a doubt the case that Japanese and Chinese are not to be assigned to the Mongols, but to an entirely different Volk blood group. Why have the states done this? I cannot believe that they have done it just in order to delineate a concept. Rather I believe that they have done it, because they were targeting a kind of race image [Rassebild], and have only erroneously lumped the Japanese in with the Mongols . . . That clearly shows that the racial point of view has been placed in the foreground . . . (pp. 106-107).
For Freisler, the concept of race was understood to be meaningful, even if not adequately defined scientifically. The idea that there had to be a strict definition of every particular race in order for race legislation to proceed would be practically limiting and thus politically ineffective. For Germany to maintain itself as a homeland for Germans, the reliance on traditional conservative legal principles had to be abandoned when necessary.
A similar approach to law was to be found in America under the influence of progressives, of which Freisler was certainly aware. Though American race law made no mention of Jews, Freisler argued that even using the very broad concept of “colored” people, as was the case in many American states, would be sufficient for German judges:
It seems to me doubtful that there would be any need to expressly mention the Jews alongside the coloreds. I believe that every judge would reckon the Jews among the coloreds even though they look outwardly white, just as they do the Tatars, who are not yellow. Therefore I am of the opinion that we can proceed with the same primitivity [Primitivität] that is used by these American states. A state simply says: “colored people.” Such a procedure would be crude [roh], but it would suffice (p. 109).
Freisler admired what the author refers to as the “American common-law style of legal racism, with its easygoing, open-ended, know-it-when-I-see-it way with the law” (p. 109). The radical National Socialist position regarded the law as a means to accomplish something bigger than law itself. That is to say, law was a means to an end, not a value in and of itself.
In the last section of the chapter, Dr. Whitman tries once again to defend his assertion that American race law was “too extreme” for National Socialists. He quotes a teacher’s guide, published in 1934, on the subject: “Sharp social race separation of whites and blacks has shown itself to be necessary in the United States of America, even if it leads in certain cases to human hardness, as when a mongrel of predominantly white appearance is nevertheless reckoned among the niggers” (p. 127). He then writes that “[t]his was the world of the American one-drop rule, disturbing even to Nazi commentators, who shuddered at the ‘human hardness’ it entailed” (p. 127). This is an incredible leap. Would any honest reader describe the quoted passage as an example of “shuddering?” Does the phrase “human hardness” necessarily have a negative connotation? How does the concept of “human hardness” fit into the National Socialist conception of youth guidance and social virtue? The author superimposes onto the past, onto another culture, his own subjective views. This is precisely what a proper historian should resist doing to the maximum extent possible.
His last example in defense of his assertion about the National Socialist view of American law as having been”too extreme” is the eventually agreed-upon definition of who is a Jew. Under the Reich Citizenship Law of 1935, a person was not considered a Jew according to the “one drop rule.” This is the best piece of evidence he offers that could possibly validate his claim. But, as with all history, context is everything. The German Jew is not an American Negro. There is no simply basis from which to deduce that because the German legal definition of a Jew was not the same as the American definition of a “colored” that National Socialists viewed American race law as too extreme. He ends this section with another lawyerly attempt to weasel himself out of the trap set by his own poor historical work:
The bottom line is that the Nazis regarded American classification schemes as too harsh, and the American race problem as too different [italics mine], for any unmodified borrowing to have taken place. But what ultimately matters is that they knew that there was an American example, and indeed the example that they turned to first, and over and over again (p. 131).
Was it too harsh or too different? Based on virtually all the evidence provided by the author, it was the latter. So why does he continually assert the former? It isn’t hard to guess.
In his concluding chapter, Dr. Whitman rehashes his main arguments and becomes even more explicit in his tiresome and trite anti-white messages. He writes, “The Nazis, let us all agree [italics mine], would have committed monstrous crimes regardless of how intriguing and attractive they found American race law” (p. 136). He then turns specifically to what this all means for America:
. . . seeing American through Nazi eyes does tell us things we did not know, or had not fully reckoned with–things about the nature and dimensions of American racism, and things about the place of America in the larger world history of racism. Not least, seeing America through Nazi eyes tells us some uncomfortable things about the character of American legal culture (pp. 136-137).
But what of this American legal culture? He writes, “In the early twentieth century, the United States, with its deeply rooted white supremacy and its vibrant and innovative legal culture, was the country at the forefront of the creation of racist law” (p. 138). (One cannot help but wonder whether there is some connection between “white supremacy” and vibrancy and innovation.) He mentions that other countries also looked to America for guidance concerning race law, including Brazil, Australia, and South Africa. He fails to ask why they would do so. Do countries seek solutions to problems or do they simply seek problems? Why would a country want to create legislation for a problem that did not exist?
Like every other anti-racist writer, his explanation for every inequality is “white supremacy.” He observes that “American legal history of the decades after 1877 is a largely unrelieved record of shameful evasion of the principle of equality that the Reconstruction Amendments were supposed to enshrine . . .” (p. 142). Why? Could it be that they were unworkable? Could it be that some races are simply incapable of living up to the expectations of whites and conforming to white social norms? He mentions the tension between the competing narratives of a white supremacist America and an egalitarian America as if the only explanation for this tension could be the fundamental and entirely irrational racism of whites. It is truly amazing that otherwise intelligent men can be so thoroughly deracinated as to not ask such obvious questions and/or that they are so terrified of the answers that they hemorrhage intellectual capital on the pages of disingenuous and shoddy books such as this in their attempts to disprove that which is obviously and demonstrably true: that there are racial differences, that these differences have ramifications in the real world, and that these ramifications most often result in what can only be described as white supremacy – not the vague, spectral notion of some sort of conspiratorial whiteness to which these pathetic eunuchs refer, but actual, empirical, natural white supremacy.
Dr. Whitman closes the book with a section on legal culture and turns once more to an issue raised during the debates on the Prussian Memorandum, that of the role of law in society:
What Freisler admired about American law is manifestly the same thing that we often celebrate in the common-law tradition today: the common law’s flexibility and open-endedness, and the adaptability to “changing societal requirements” that its judge-centered, precedent-based approach is often said to permit. Other Nazis too had admiring things to say about American judge-made common law, which, they declared, had facilitated the creation of a healthy law that “emerged out of the Volk” rather than being the product of barren legal formalism (p. 146).
He goes on:
. . . it is the case that Nazism emerged in a continental Europe with a code-based civil-law tradition. But it would be utterly mistaken to imagine that the Nazis embraced or embodied that civil-law tradition. On the contrary, the critical truth of legal history is that the Nazis set out to smash the traditional juristic attitudes of the civil-law jurist. Far from representing the traditions of the legalistic state, the Nazis belonged to a culture of contempt for the ways continental lawyers had been trained to work (p. 149).
Like economists, jurists often see themselves as scientists who utilize hard and fast “laws” of their profession which cannot be violated because to do so would be a violation of those laws. This tautological approach was anathema to National Socialist revolutionaries. It is in this context that Freisler spoke of legal “primitivity” rather than “science.”
The law is merely a tool by which to fashion order from chaos. It is not sacrosanct, it is not based in nature. It is a human construction. As such, it can be used to facilitate a better society or it can become mired in textual muck and act as a weight on human progress. Among the many fundamental issues National Socialism addressed, this is among the most important. To reject a “scientific” approach to law is to liberate the people from arbitrary and often detrimental restrictions on the collective will. The author writes: “Nazi law was law that was liberated from the juristic past – it was law that would free the judges, legislators, and party bosses of Nazi Germany from the shackles of inherited conceptions of justice . . .” (p. 152). This is why National Socialists turned to American law, then under the (somewhat fading) influence of the progressives, for guidance. This is also why they observed the New Deal with much interest. Dr. Whitman quotes one National Socialist commentator on the Supreme Court’s decision to strike down New Deal programs as “incomprehensibly formalistic and alien to life” (p. 154). Another commentator wrote that “[l]ife-law before formal-law is the fundamental drive of national socialist legal life” (p. 155).
The author of this book is an unabashed anti-white who wants to quash any residual (or burgeoning!) racial consciousness among American whites – and possibly to inject a fresh strain of conservatism into contemporary American legal culture in the process, but he is not entirely clear on this last point – and anyway, at this particular time in history, this is probably in the interest of whites due simply to the fact that the court system as it stands is almost universally allied against white collective interests. Those are the only goals of this book. Nothing he presents is innovative or insightful. This is little more than a diatribe against whites dressed up as scholarship. Professionalism is almost non-existent in these pages and any decent historian should be appalled while reading this book. He regularly drops context in favor of easily digestible nuggets of half-cocked information and what amounts to stupid academic sloganeering. While the connections he makes between National Socialist Germany and America are often real, it is clear that he understands them only on the most superficial of levels and is unwilling to dig deeper, perhaps because, like most whites, he is terrified of what he will find. Perhaps he knows deep down that the races are unequal, but cannot figure out how to cope with this glitch in his conditioned worldview, so he fights it by burying such thoughts deep in comforting platitudes. Or maybe he is just a sick, soulless son of a bitch. Either way, the era he describes should be conceived in moral and political terms as the exact opposite of the way in which it is presented in this book. All this book will do is to further deceive and corrupt the minds of historically illiterate readers. But, of course, that is what Dr. Whitman and Princeton University Press had intended all along.
Notes
1. Joshua Muravchik, “Did American Racism Inspire the Nazis?,” Mosaic Magazine, March 9, 2017 (accessed March 20, 2017).
2. For a concise outline of the proper White Nationalist approach to white Muslim converts such as Johann von Leers, see Greg Johnson, “The Muslim Problem,” Counter-Currents Publishing, January 27, 2015 (accessed March 29, 2017).
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