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There are not many states that have legislated differential degrees of citizenship and rights based on allegedly racial grounds, at least after the ending of chattel slavery. Three that stand out are the United States, the Union (later Republic) of South Africa, and the Third Reich. The legal historian James Whitman has written an eye-opening study of the influence of the American states’ legalized racial disabilities (segregated public facilities and prohibition of interracial marriage) on the political and legal architects of National Socialist racial laws, in particular those announced at the Nuremberg Party rally in September 1935. He argues persuasively that the Nazi authorities admired the American racial regime (as they did many other aspects of the United States, such as its industrial prowess), studied it carefully, and sought to emulate those aspects that they could, but changing the target of the legislation from African Americans in the United States to Jews in Germany. Those Nazi lawyers inspired by the American legislation believed that U.S. racial awareness was hobbled by unwillingness to include Jews along with “coloreds” as a threat to its Volk. But appropriate German legislation, such as envisaged for Nuremberg, could overcome this American short-sightedness. Whitman is aware that German and American historians of the last generation have documented the interchanges between U.S. and Nazi enthusiasts for both racial discrimination and eugenic programs to eliminate the disabled. (Of course, where Americans concerned about eugenic degeneration focused on sterilization as a remedy, the Nazis moved on to euthanasia by the late 1930s, and, after suspending the program when it encountered signs of public unease and some Roman Catholic denunciation, resumed it once the Second World War began.) Whitman’s particular concern, however, is influence and example. He aims primarily to document the careful Nazi attention paid to American racial legislation. The key pieces of evidence for influence come from such tracts as Heinrich Krieger’s 1936 compendium, Race Law in the United States, and a major debate by German lawyers on June 5, 1934, which pitted conservative German civil servants who thought American race law inapplicable as a model, and the enthusiastic Nazi lawyers who admired the pragmatic flexibility in devising legislation that could remove citizenship status and punish interracial sexual relations. As early as September 1933, the latter group had circulated a so-called Prussian memorandum that urged punishment of racial crimes, including henceforth interracial marriage and even public consorting with Negroes. Historians who have followed the literature on the Nazi treatment of the Jews will hardly be shocked by trans-Atlantic conversation among racists. But Whitman is evidently concerned that American readers will greet his findings with shock and perhaps indignation, and he takes great pains (sometimes repetitively so) to insist that the U.S. regime was fundamentally different in most respects from the Third Reich. He reminds us that American racial disabilities—whether formally legislated (Jim Crow laws and segregated schools) or informally enforced through social practices including lynching, as the Nazis complaisantly observed—coexisted with a discourse of allegedly universal rights inscribed in the Declaration of Independence and the Constitution. Addressing those readers who would argue that German anti-Jewish legislation in the 1930s culminated in the Holocaust, while there was no Black genocide in the United States, Whitman points out that the Nazis did not develop an outright genocidal policy until they had conquered vast swathes of Eastern Europe, with a far larger Jewish population than Germany’s half-million Jews (about 1 percent of the population) had constituted. Whitman begins by examining the two major components of the legislation announced at Nuremberg. The first “law” separated citizenship in the Third Reich (Reichsbürgerschaft), enjoyed by non-Jews and entitling to civic rights (insofar as these remained meaningful under such a dictatorship), from mere “nationality” (Staatsangehörigkeit) or more literally “belonging to the state.” Jewish state subjects were excluded from serving in the public services (including the universities and bureaucracy—by the law “reforming” the civil service decreed as early as March 1933), their property had to be surrendered when they emigrated, they could not employ non-Jews as domestic servants, and if doctors or lawyers, they could not have non-Jewish clients. Eventually they would be compelled to wear yellow stars and their passports were stamped with a “J.” American immigration restrictions on racial grounds and prohibitions on intermarriage, provided an exemplary model, although regrettably in Nazi eyes, Americans had not yet chosen to include Jews in the legally stigmatized categories. The second major Nuremberg law forbade intermarriage between Jews and the non-Jewish category of Aryans. Of course in a country where significant intermarriage had taken place in prior generations, the “Mischling” or hybrid products had to be defined. (Whitman translates Mischling as mongrel, which because of its application to dogs retains, I think, a harsher tonality in English than the German term, which is more equivalent to mestizo or mulatto.) The Nazis did not see how to apply the American “one-drop” guideline since physical appearance provided no equivalent sorting criterion. Grandparents were key. One Jewish grandparent was insufficient to classify one as Jewish (although high Nazis and SS officers were not to marry quarter Jews. Having three Jewish grandparents meant that one must be classified as Jewish. The offspring of mixed marriages with two Jewish grandparents and two Aryans were defined as Jewish if they were raised as Jewish or went on to marry Jews. The German lawyers, to their regret, did not believe they could forcibly encourage non-Jewish spouses to dissolve their marriages (this would have encountered the clergy’s objections, as did euthanasia); and this allowed several thousand Jewish men to survive the war, usually under semi-clandestine and humiliating conditions, as famously recorded in the diaries of Viktor Klemperer. It is true that Whitman looks only at the major Nuremberg legislation and not the broad tapestry of Nazi injustice, but he has read deeply in the legal tracts of the German lawyers who followed American precedent so admiringly. Still, he focuses perhaps too exclusively on the 1935 Nuremberg legislation. After all the Law to Renew the Civil Service in early 1933 had already disqualified Jews (not yet formally defined, but operational enough) from the civil service and teaching, leaving professors and civil servants without livelihood. Whitman has largely left out of account the particular craziness of the Nazi efforts to determine Jewish taint when the legal criteria proved muddy. The Reichssippenamt (a sort of pedigree agency) investigated particular mixed Jews, and often responded to non-Jews in public positions who wanted testimonials that their wives tainted by mixed descent were sufficiently Aryan. How useful these authorities would have found DNA testing! The preoccupation with what the Spanish Inquisition had termed limpieza de sangre—cleanliness of blood—reached tragic proportions even though “passing” was conceivable in both Germany and the United States. Whitman is also not concerned with the degradation of everyday life for the Jewish “subjects” or the German state—the restrictions on shopping hours, the silence of neighbors. The right to continue living (for a while—the last non-intermarried Jews were rounded up inside Germany in 1941–1944) in Aryan neighborhoods brought no less hardship than African-American segregated neighborhoods. For the Jews of course, the disabilities came as a new, painful ordeal; African Americans were long inured to their social handicaps. Whitman treats in passing the legacy of both countries’ colonial empires, but it deserves, I think, a more detailed look. The Insular Cases of the early twentieth century admitted that the newly acquired colonial subjects of the United States, enjoyed at best a quasi-citizenship, not the full rights of Americans. German colonial administrators were vexed by the problem of mixed marriage in the colonies and while German women who married African men might lose their citizenship, it was decided German men who married African colonial subjects retained theirs, as did their children. These were all issues that had an impact in drafting the Imperial German citizenship law of 1913, which had to supersede the laws of the federal states such as Bavaria or Prussia. The conundrums raised were there also as a precedent in 1933. Many sources flowed into the Nazi jurisprudence alongside United States racism. Still, perhaps because of as well as despite its narrow focus, this is an admirable, courageous, and useful legal history. Whitman—who has earlier written an erudite study of the impact of Roman law on German legal theory, and, more relevant in the current context, a critique of American criminal sentencing in comparative perspective (Harsh Justice: America’s Solitary Place in the Liberal West)—also provides useful theoretical reflections on the virtues and defects of American legal “realism” or pragmatism as compared with the German reliance on formal texts. He shows how the Nazi lawyers, including the despicable Roland Freisler, chief of the infamous People’s Court, appreciated the American judiciary’s willingness to depart from precedent and formalism. And he suggests that the same readiness to overthrow precedent, as served progressive purposes in Brown vs. Board of Education in 1954, could serve in the Third Reich to remove the civil rights that had prevailed in Germany and Western Europe since the French Revolution. Legal formalism, he reminds us, can protect rights as well as hold back innovation. Whitman believes that American readers, including evidently the law professors who blurb his book, should be shocked at his findings. Historians will be less shocked, but Whitman is correct to believe that we should all be appalled. © The Author(s) 2018. Published by Oxford University Press on behalf of the Society for Historians of American Foreign Relations. All rights reserved. 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Diplomatic History – Oxford University Press
Published: Nov 1, 2018
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