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AMERICA THROUGH NAZI EYES  
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Omer Aziz
January 9, 2021
Dissent
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_ The most radical Nazis were the most aggressive champions of U.S.
law. Where they found the U.S. example lacking, it was because they
thought it was too harsh. _

At the bus station in Durham, North Carolina, May 1940. , Photo by
Jack Delano via Library of Congress.

 

_Hitler’s American Model: The United States and the Making of Nazi
Race Law_
by James Q. Whitman
Princeton University Press, 2017, 224 pp.

In September 1933, an important policy document known as the Prussian
Memorandum began circulating among lawmakers and jurists of the Third
Reich. The Nazi regime was still in its infancy; Hitler had been named
chancellor just nine months prior, the result of a power-sharing
arrangement with nationalist conservatives who thought they could
control the mercurial Austrian. Following the Reichstag Fire in
February of that year, Hitler had assumed emergency powers and within
weeks usurped the authority of the parliament. By that critical
autumn, the Third Reich had begun Nazifying the German legal code. The
Prussian Memorandum that passed between Nazi legal hands was an early
blueprint for the 1935 Nuremberg Laws, which stripped Jews of their
citizenship and criminalized sexual relations between Germans and
those thought to have impure blood. It was the foundational text of
Nazi legal thinking. Incredibly, the Prussian Memorandum expressly
cited the gold standard of racist lawmaking at the time: the United
States of America.

The following summer, on June 5, 1934, Nazi lawyers, jurists, and
medical doctors gathered under the auspices of Justice Minister Franz
Gürtner to discuss how to codify the Prussian Memorandum. The very
first item discussed was U.S. law: “Almost all the American states
have race legislation,” Gürtner averred, before detailing a myriad
of examples, including the many states that criminalized mixed
marriages. Roland Freisler, the murderous Nazi judge, stated at the
meeting that U.S. jurisprudence would “suit us perfectly.” All the
participants displayed either an eager interest in, or an avowed
knowledge of, U.S. law. This went beyond specific legislation. The
Nazis looked to an innovative legal culture that found ways to
relegate Native Americans, African Americans, immigrants, Chinese,
Japanese, Filipinos, and others to second- and third-class status; the
many devious pathways around the constitutional guarantees of equal
protection; the deliberate textual ambiguity on the definition of race
itself; the draconian penalties for sexually consorting with a lesser
race, or even meeting publicly. The United States in the 1930s was the
apogee of a racist state.

The Nazi policymakers were at odds over whether the U.S. example was a
useful one, with the traditionalists and radicals in fierce
disagreement. What is remarkable is that the most radical Nazis were
the most aggressive champions of U.S. law, and where the Nazis found
the U.S. example lacking, it was because they thought it was too
harsh.

This stunning historical episode is faithfully rendered in James Q.
Whitman’s _Hitler’s American Model_, a slim but consequential
report on the banality of lawful evil. Whitman is a professor of
comparative and criminal law at Yale Law School. (Full disclosure: I
was a student in his legal history class, although we never
interacted.) In his book, he asks one of those dangerous intellectual
questions that are so pressing in the current political era: How could
the United States, the land of liberty and constitutional
republicanism, have influenced the most racist and genocidal regime of
the twentieth century? Given the neo-Nazis marching in Charleston,
South Carolina, and in Chemnitz, Germany, along with the mélange of
fellow-travelers on the fascist spectrum—white nationalists, the
alt-right—Whitman’s investigation feels urgent. He wants to know
what, if anything, the United States taught the Nazis, and what this
in turn says about the United States.

Modern Germany fundamentally rejects, and assumes complete
responsibility for, the heinous crimes committed under the Third
Reich. The Nazis occupy a uniquely menacing place in the Western
imagination, the embodiment of humanity’s darkest instincts for
racial hatred and barbarism—what Hannah Arendt called “radical
evil” in _The Origins of Totalitarianism_. Whitman uses the
word _Nefandum_, “an abyss of unexampled modern horror against
which we can define ourselves.” It is appropriate to be wary of
invoking the Nazis, especially in an online environment that has
turned the words “Hitler” and “Nazi” into clichés, devaluing
their meaning and cheapening the historical lessons to be learned.

At the same time, the Nazis cannot be placed in a special category
outside history, outside the human condition—a sui generis episode
beyond comparison. They must be demythologized and studied closely,
because the National Socialist German Workers’ Party and its leader
emerged out of a particular context, in a particular time, with a
particular set of ideas that won greater and greater purchase the more
they were propagated. Moreover, this band of extremist reactionaries
were incrementalists. As Whitman emphasizes, “it is simply not the
case that the drafters of the Nuremburg Laws were already aiming at
the annihilation of the Jews in 1935.” At that point, the Nazis
wanted to exile and marginalize the Jewish minority, turning them into
second-class citizens.

Whitman’s study covers the earliest period of the Nazi regime,
before it arrived at its monstrous endpoint. The Nazis’ ideas were
still being debated, discussed, and put into practice at this point.
Since their beginnings on the fringes of German politics, the Nazis
had advocated a program of racist nationalism; they were consumed by
what Whitman calls _Rassenwahn_—“race madness.” It was this
hysteria over race, and the single-minded focus on it, that
distinguished Hitler and his party from other fascists and
authoritarians. It was also why the Nazis looked to the United States
for inspiration.

Hitler was not influenced by the United States alone. “Let’s learn
from the English,” Hitler said repeatedly, “who, with two hundred
and fifty thousand men in all, including fifty thousand soldiers,
govern four hundred million Indians.” According to multiple sources,
Hitler was also fascinated by Islam, which he saw as a muscular,
militant religion in contrast to the meek faith of suffering that was
Christianity—despite the fact that Arabs were Semites, and that
non-Arab Muslims were considered racially inferior. Even closer to
Hitler’s mind was Mustafa Kemal Pasha, or Atatürk, the founder of
modern Turkey, who had resisted the Versailles Treaty and whose
regime’s genocide of the Armenians was an early example of
exterminationist policy.

But as far as racially inspired lawmaking was concerned, it was the
United States that aroused the Führer’s interest the most, even as
he deplored its liberal-egalitarian ethos. He loved the novels of Karl
May that depicted cowboys conquering the West, and, as Timothy Snyder
and others have argued, Hitler’s model for creating
German _Lebensraum_ in Europe was the American genocide of
indigenous peoples, the depopulation of their lands, and their
subsequent legal subjugation and ghettoization. Nazi intellectuals and
doctors had a sustained engagement with the eugenics movement, which
was codified into U.S. immigration law and served as a model for the
Third Reich’s own sterilization and euthanasia program. (North
Carolina had a sterilization policy for the mentally ill until 1977.)
The very founding of the United States, in white supremacist history,
was the crowning achievement of the Aryan peoples. “The racially
pure and still unmixed German,” Hitler wrote in _Mein Kampf_,
“has risen to become master of the American continent, and he will
remain master as long as he does not fall victim to racial
pollution.” The United States was “the one state,” Hitler wrote
from prison, that sensibly refused immigration to “physically
unhealthy elements, and simply excludes the immigration of certain
races.” In his unpublished second book, Hitler again marveled at the
racial hierarchy of the United States, with Nordics, English, and
Germans at the top of their rightful dominion as the master race.

Officials and lawyers in the Third Reich were also intrigued by
anti-miscegenation statutes, because the policing of sex was necessary
to cleanse the Aryan race. Hitler, who had been largely asexual during
his crucial years as a failing painter in Vienna, was obsessed with
sex and blood. The United States at the time was a global leader in
banning mixed marriages, going so far as to criminally punish those
who defied the law. (Many of these laws were not struck down in the
United States until the Supreme Court’s 1967 _Loving v.
Virginia_ case.) The Prussian Memorandum explicitly invoked U.S. laws
that promoted segregation to maintain racial purity, and the sexual
morality of white women in particular. Similarly, the third Nuremburg
Law expressly forbid marriages and extra-marital relations between
Germans and Jews, and promised hard labor in prison for law-breakers.
The more one reads about the American and Nazi fixation on race, the
more evident it becomes that at the very core of racist ideology is a
primal fear of sexual inadequacy, of pollution, of mixing. Racial
nationalism, the ideology of the Nazis, took this idea to its logical
end.

From a contemporary U.S. perspective, however, the most interesting
area of influence that Whitman explores is in immigration law. From
the outset, the United States had a racially restricted immigration
regime. The Naturalization Act of 1790, passed by the First Congress,
limited immigration to “free white person[s].” In the 1800s, the
United States passed more racially exclusionary immigration laws
because of the perceived threat of Asians. As Whitman notes, the Nazis
“almost never mentioned the American treatment of blacks without
also mentioning the American treatment of other groups, in particular
Asians and Native-Americans.” The Chinese were excluded from
citizenship in the late 1800s, and the Asiatic Barred Zone of 1917
expressly banned immigration from a whole swath of Asia. Finally, the
Immigration Act of 1924 set racial quotas for those who could enter
the United States, and banned Indians, Japanese, Chinese, and other
Asians outright, along with nearly all Arabs. Under the Cable Act of
1922, if a woman married an Asian man, her U.S. citizenship would be
revoked. There were similar race-based immigration laws in Canada,
Australia, New Zealand, and South Africa. Discrimination against
immigrants on the basis of race was the norm, and in the United States
it survived until the Immigration and Nationality Act of 1965, which
is also the principal legislation that today’s white nationalists
seek to undo. The Nazis had much to envy, what with the porous borders
of Europe and the humiliating foreign treaties that had crippled
Germany.

What of those immigrants who became citizens, or those beleaguered
minorities to whom the United States granted the privileges of
citizenship? Despite an avowed declaration of constitutional equality,
citizenship was under its own separate-but-equal doctrine. Until 1924,
Native Americans were considered “nationals” and not citizens.
After the Spanish-American War of 1898, Puerto Ricans and Filipinos
were legally classified as “non-citizen nationals.” Most
infamously, the 1857 _Dred Scott_ decision held that African
Americans were not citizens, and even after the Civil War, black
people were legally relegated to third-class status. The Nazis took
interest in all of this; the second Nuremburg Law confined citizenship
to that person who “is exclusively a national of German blood, or
racially related blood.” Jews were denaturalized, rendered subjects.
The U.S. precedent laid out how to create a hierarchy of citizens,
nationals, and subjects. Tiered citizenship and the capricious
revocations of civil rights were of great interest to Nazi
intellectuals.

What is troubling about _Hitler’s American Model_—though Whitman
never mentions it—is how closely the events of the 1930s mirror our
own. Such statements are bound to seem exaggerated. But even by the
early 1930s, Germany was not destined to arrive at catastrophe. The
ideas in the air at the time, including anti-Semitism specifically,
are still the object of white nationalist fantasy today. What is most
alarming is an unstated implication of Whitman’s thesis: if U.S.
racism, anti-immigrant hostility, and third-class citizenship
influenced the Nazi regime, then remnants of such influence must still
exist today. Indeed, they appear to be resurgent.

It is not white supremacy that differentiates America from Nazi
Germany, but rather the constitutional architecture of this
country—a democratic system tested, broken, remade, rewritten.
Racism in the United States is counterbalanced by an emancipatory
spirit. The Constitution enshrined slavery, but this same Constitution
was transformed as a result of the bloodiest war in U.S. history,
which ended the Southern slave empire. The Civil War was a second
American founding, and the passage of the Thirteenth, Fourteenth, and
Fifteenth amendments advanced the American spirit of equality before
the law. Even amid the racist terror that lasted long after the Civil
War, African Americans made room in the United States to fight for
their freedom, equality, and dignity. Nazi Germany, by contrast, was a
totalitarian state, and its express objective was the erasure of the
Jewish people. These differences cannot be minimized.

But even within a democratic constitutional system, white supremacy in
the United States has persisted, ebbing and flowing along the course
of history, receding at times and then returning with a vengeance. At
the heart of the current white nationalist project is the racial
supremacy of people who believe that America was exclusively founded
for them. Race madness has taken over the Trump base, and the White
House has become home to those who seek racial purification. The
project to erode citizenship rights, restrict immigration, and reclaim
the American idea as a white idea is already underway. The United
States is denying passports to citizens on the southern border.
Denying bond hearings to those immigrants—even permanent
residents—who are incarcerated. Separating children from their
parents. Banning Muslim travelers. Refusing green cards to Americans
who need public assistance. Politicians and law professors debate the
merits of ending birthright citizenship; while currently a fringe
idea, a future Supreme Court decision severely limiting birthright
citizenship seems foreseeable. This purification agenda is being
carried out by deportation squads roving the country in search of
targets. Alarm bells ought to be going off about this program of
national cleansing. We do not yet know where this ends.

The United States is a nation with two radically different ideas at
its heart: white supremacy and equality under the law. A nation that
currently has more immigrants than any country in the world but is
undergoing traumatic convulsions at the very mention of immigrants. A
nation with a pessimistic mind and an optimistic soul, founded and
codified by white men, whose geographic expansion was made possible by
the violent clearing out of the original inhabitants, whose economic
growth was purchased through slavery, but also a land where millions
of immigrants have come in search of work and opportunity. The
question of who counts in the “we” and who belongs to the
“them” is being argued and fought every day, from the courtroom to
the classroom to the streets. It is a conversation that has been
taking place since the founding of the United States, and one that was
taking place in Germany when the Nazi cabal seized the state. How this
nation answers that question will determine which of the two American
ideas lives on.

_OMER AZIZ is a writer whose work has appeared in the New York
Times, the New Republic, the Atlantic, and elsewhere. He tweets at
@omeraziz12._

_DISSENT is a quarterly magazine of politics and ideas, publishing the
very best in political argument, and take pride in cultivating the
next generation of labor journalists, cultural critics, and political
polemicists..  Subscribe now!
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