Bill Moyers in conversation with author James Whitman about his new book “Hitler’s American Model: The United States and the Making of Nazi Race Law
Source: Moyers & Company/Bill Moyers
To get to the core of race in America today, read this new book by James Whitman. Whitman is the Ford Foundation Professor of Comparative and Foreign Law at Yale Law School. Prepare to be as startled as this respected legal scholar was when he came upon a meticulous record of a meeting of top lawyers in Nazi Germany after Hitler’s rise to power. Not only did those lawyers reveal a deep interest in American race policies, the most radical of them were eager advocates of using American law as a model. Scholars and historians have argued for years about whether American’s own regime of racial oppression in any way inspired the Nazis. Not only does Whitman throw a bright light on the debate, to this reader he settles it once and for all. Carefully written and tightly reasoned, backed up every step of the way with considered evidence and logic, Whitman reminds us that today is yesterday’s child, and that certain strains of DNA persist from one generation to another.
Bill Moyers: You begin the book with a meeting of Nazi Germany’s leading lawyers on June 5, 1934, which happens, coincidentally, to be the day I was born.
Whitman: You bet. They did. And that’s how we remember them today.
But it wasn’t just about American immigration law. There was also American law creating forms of second-class citizenship — for African-Americans, of course, but also for other populations including Asians, Native Americans, Filipinos and Puerto Ricans. Not least, there were statutes in 30 American states forbidding and sometimes criminalizing interracial marriage. Those were of special interest to the Nazis.
Moyers: You quote the German writer Wahrhold Drascher, whose book was titled Supremacy of the White Race: “Americans took care to guarantee that the decisive positions in the leadership of the state would be kept in the hands of Anglo-Saxons alone.”
Moyers: You quote one prominent Nazi lawyer who admired the Democratic Party of the South for using “racist election law” to build a one-party system.
Moyers: The racism that existed and was practiced irrespective of law.
Moyers: You point out that Germans defined sexual relations between a German and a member of a foreign race sexual intimacy as “race treason.”
Moyers: On reservations.
Whitman: Yes, the passage you quote is from a Nazi-sympathizing doctor in 1935, saying things that Nazis frequently said at the time. American immigration law had been admired on the European far right wing for a long time, including in particular in a book called The Handbook of the Jewish Question. This was a kind of a minor bible of the Nazi movement, going back to the late 19th century, because already by then the US was restricting immigration in ways that inspired radical Nazis.
Moyers: So that in the early ’30s, when these Nazi lawyers were engaged in creating a race law founded in part on anti-miscegenation law and race-based immigration, they came looking for foreign models and found some in the US.
Whitman: Yes, and studied them very, very carefully. That’s not only true of anti-miscegenation law. The passage that you just quoted earlier on about American immigration law was the product of a lot of very careful study of that law. They worked hard to learn what was going on in the US. And in particular, as you say, they worked very hard trying to understand or to master American anti-miscegenation law. Thirty American states had anti-miscegenation statutes. These were by no means limited to the American South. They were found all over the country. They didn’t target only blacks. They were also particularly devoted to banning and sometimes criminalizing marriages and sex between Caucasians and Asians, Caucasians and Native Americans — it goes on and on. Anti-miscegenation laws were a national phenomenon. At the meeting on June 5, 1934, the memorandum discussed by the minister of justice was accompanied by a list which detailed the anti-miscegenation provisions found in all 30 of the states that had them. And the law of those states was discussed in detail — I would almost say excruciating detail. They were really looking to see what they could learn from the US.
Moyers: You have a quote from that transcript of this meeting. One Nazi says to the state secretary, “I’m reminded of something an American said to us recently. He explained, ‘We do the same thing you Germans are doing, but why do you have to say it so explicitly in your German laws?’” And the state secretary answered, “But the Americans put it in their own laws even more explicitly.” Was he right?
Whitman: He was. It’s quite a memorable exchange, I have to say.
Moyers: You write that the Nazis were obsessed with the state enforcement of racial and sexual purity. Mixed marriages and mixed sex could lead to imprisonment. They included in the Nuremberg Laws “a blood law,” and you write, “It is with the blood law that we discover the most provocative evidence of direct Nazi engagement with American legal models and the most unsettling signs of direct influence.” Would you elaborate on that?
Whitman: Sure. So again there were two principle Nuremberg Laws apart from the flag law that we mentioned before. The first we usually call the citizenship law — the creation of second-class citizenship for Jews was the object of that law. The second law — what we call “the blood law” — was precisely the law about interracial sex and marriage. When it came to the first, the citizenship law, there was plenty of inspiration the Nazis could find in a general way in the United States. But only in a general way, because although the US had no shortage of legal provisions effectively depriving American blacks of voting rights for example and other pertinence of citizenship, and although the US created a special kind of second-class citizen status for certain populations, notably the Filipinos, Puerto Ricans, Native Americans, those aspects of American law for the most part involved legal subterfuges. You couldn’t actually come into court in the US and say blacks are not citizens because after the Civil War the citizenship of blacks was guaranteed in the US, so you had to find tricks. The Nazis were of course not going to use tricks. They were simply going to say openly that Jews are not citizens. They didn’t have any difficulty saying that at all and for that reason when it came to their citizenship program they weren’t going to borrow directly from the United States.
Matters were very different when it came to banning interracial marriage and sex because, as we just said, American anti-miscegenation statutes were completely unapologetic and open about race-based aims. They said “no sex or marriage” between Caucasians and Africans, as they often called them, or between Caucasians and Mongols — that was a typical term for Asians — and so on and so forth. The Nazis had something from which they did not hesitate to borrow and they studied these laws very, very carefully.
Moyers: You write that the US Supreme Court entertained briefs from southern states whose arguments were indistinguishable from those of the Nazis.
Whitman: They were. The sorts of things the Nazis said, often using terms like mongrelization and bastardization of the population were also often said by Southern racists. It was exactly the same vocabulary.
Moyers: Let me read to you. Here’s a quote from a Maryland statute in 1957 — 1957! — that you include in the book:
All marriages between a white person and a Negro, or between a white person and a person of Negro descent, to the third generation, inclusive, or between a white person and a member of the Malay race or between a Negro and a member of the Malay race, or between a person of Negro descent, to the third generation, inclusive, and a member of the Malay race, or between a person of Negro descent, to the third generation, inclusive, and a member of the Malay race or between a Negro and member of the Malay race, or between a person of Negro descent, to the third generation, inclusive, are forever prohibited and shall be void; and and any person violating the provisions of this section shall be deemed guilty of an infamous crime and be punished by imprisonment in the penitentiary for not less than eighteen months or more than 10 years.
That was Maryland law.
Whitman: Yes, and it wasn’t the only one. Laws of that kind weren’t ruled unconstitutional until 1967 by the Supreme Court in the famous case of Loving v. Virginia. You could find them all over the United States and they were of great interest to the radical Nazis. The idea that racially mixed marriage was somehow objectionable was pretty widespread in the world in the early 20th century. Racism was something you found everywhere. But criminalization of the American kind was something that you just couldn’t find elsewhere, particularly criminalization of such harshness as to threaten 10 years of imprisonment. That was was of tremendous interest to radical Nazis who wanted exactly the same thing for Germany.
Moyers: Some of them talked about how America’s long history of sexual relations between masters and slaves left the US “groaning under the weight of an enormous mass of mongrels.” Which brings us to Sen. Theodore Bilbo from Mississippi, one of the most powerful of all Southern politicians.
Whitman: He figures in my book as he does in some other very important work by Ira Katznelson. Sen. Bilbo was a dyed-in-the-wool racist and a great pillar of the New Deal government in the early 1930s and thereafter. You’re absolutely right — the huge mass of “mongrels” was something the Nazis recognized in the United States. That’s a German phrase, it’s not a Nazi one, but it’s a German phrase for describing the American situation. One of the shocking things about my research was to come to terms with the fact that American definitions of who counted as black or members of other races were much more far-reaching and draconian than anything the Nazis themselves came up with.
Moyers: Bilbo said, “One drop of Negro blood placed in the veins of the purest Caucasian destroys the inventive genius of his mind and palsies his creative faculty.” Is it true that the Nazis thought the one-drop rule too extreme?
Whitman: They did indeed. They never proposed anything nearly as extreme as the one-drop rule. In fact the standard, the most far-reaching Nazi definitions of who counted as a Jew, matched the least far-reaching ones to be found in the American states. Virtually all American definitions of who counted as a black were far more draconian than anything found in any Nazi proposal. At the same time, the Nazi literature expressed real discomfort about the so-called one-drop rule, which, I have to say, was not found in every American state, as there were a variety of approaches in the US. But it was understandably notorious. The Nazis, difficult as it is to imagine, described the one-drop rule as inhuman, as “involving human hardness that’s going much, much too far, you couldn’t do that kind of thing,” they said. And their own definitions for who counted as a Jew, especially those that were ultimately attached to the Nuremberg Laws, were more restricted than anything to be found in American states at the time.
Moyers: Talk about The Cable Act of 1922. I never heard of it until I read your book.
Whitman: The Nazis were interested in it. The Cable Act was the American version of something found throughout the world at the time — certainly in Europe and the United States. The Cable Act dealt with a standard problem in the law of the day. According to traditional legal definitions in the 19th century, a married woman acquired the citizenship of her husband and lost her native citizenship. That was part of the general submersion of a wife’s legal personality into the personality of her husband. That rule was being abrogated everywhere in the early 20th century and it was abrogated in the United States, too, but the Cable Act included an exception. It said, “Although women retain their American citizenship ordinarily when they marry a non-American citizen, if they stoop so low as to marry a Japanese person or an Asian, they have to be deprived of citizenship in that case.”
It’s one of a few examples the Nazi lawyers talk about that I think may have played a role in the formation of the ultimate regulations implementing the Nuremberg Laws. In determining who counted as a Jew, the Nazis decided that anybody with two Jewish grandparents would only count as a Jew if that person practiced the Jewish religion or married another Jew. This idea of who counted as a member of a given race depending on their marital history was something for which we could find a bunch of examples in American law and the examples are discussed in the Nazi literature.
Moyers: The Prussian Memorandum we discussed earlier declared that causing harm to the honor of the race could also be made criminally punishable. When I read your take on this, I thought of the current debate over athletes taking a knee during the Pledge of Allegiance or the national anthem. There are people on the right, including the president of the United States, who say they are dishonoring the flag, dishonoring the history of the country. How little they know of our history. We’re still fighting over legacies from the past.
Whitman: Yes. I handed in the corrected proofs of this book the day before Election Day, so although I knew that some of these undercurrents in America were erupting once again, I didn’t understand how much that was the case. What you say is quite true. Things obviously have improved immeasurably. We’re not back in the 1930s and I wouldn’t want anyone to read my book as suggesting we are. We’re certainly not. There are nevertheless obvious resemblances and obvious continuities. and it’s interesting that you mention the controversy over the national anthem and the flag. It’s worth emphasizing that the swastika flag played a big role in the Nuremberg Laws as well. The Nazis were very, very concerned with demanding obeisance to the symbols of the regime. They even discussed how people might be required to show respect for the heroes of the Nazi movement and of German history; that discussion played a role in that June 5, 1934 meeting. But these kinds of things mattered to them just as they matter now on the American right wing.
Moyers: White supremacists have been emboldened by Trump. There were the storm troopers marching through Charlottesville searching for Jews. The far right gains support over issues such as immigration, identity, nationality, even greatness: “Make America Great Again.” All reverberations from our past.
Whitman: At that Charlottesville rally, people were chanting, “Blut und Boden,” which is “Blood and soil” — that’s the Nazi slogan. Obviously consciously borrowing it from the Nazis and displaying flags that barely alter the swastika symbol. There’s no question that they at least want to trumpet their sense of kinship with the Nazi movement. How much they really know about it, I don’t know. But in researching for this book I learned that it’s not just a matter of Americans borrowing from Nazis; the Nazis were borrowing from the Americans too. A lot of this, unfortunately, got started in our country.
Moyers: So tell me about Heinrich Krieger. He’s one of the most fascinating personalities to appear in your book.
Whitman: Yes, he was a young Nazi lawyer who somehow in the year 1933–34 found himself an exchange student in Arkansas. He obviously loved international travel. He was particularly interested in indigenous legal traditions so he worked on American Indian law. Published a perfectly good article on American Indian law in an American law review, one that was certainly written from a Nazi point of view but that showed real mastery of the law and said some intelligent things about American Indian law. I hope I don’t offend anybody in observing that there were smart and gifted people who were Nazi lawyers. He returned to Germany where somebody in the justice ministry heard about this kid off in Dusseldorf who knew something about American law. He then wrote a memorandum describing American law and displaying real mastery of American law and American race law. He followed that with a thick book called Race Law and the United States, which is a Nazi book but a Nazi book full of acute observations. You don’t want to say anything good about any Nazi scholars but the truth is that Nazis were able to see things in America, precisely because they were looking at them from a Nazi point of view.
Moyers: His heroes were Thomas Jefferson and Abraham Lincoln. Explain that.
Whitman: Isn’t it hard to take? Well, so it’s important here as background to explain the aims of the early Nazi program. When the Nazis first came to power, the Holocaust was not yet on the horizon. Hitler, as we’ve seen, had spoken of the Americans gunning down the millions of redskins. But despite that, the idea of mass murder wasn’t really practical or much discussed. The early aim of the Nazi program was to force the Jews to emigrate. It was to expel the Jews as had been done in Europe in the Middle Ages or to make life so miserable for them in Germany that they would flee.
Here is the hard part in talking about American history: The reason that Heinrich Krieger admired Jefferson and Lincoln is that both Jefferson and Lincoln repeatedly said that the only real hope for the US lay in resettling the black population somewhere else. And he quoted both Jefferson and Lincoln to that effect. His view of American history was that if only Lincoln hadn’t been assassinated Lincoln would have instituted something like the order the Nazis wanted — that is, he would have found some way to resettle the black population, now freed, in the United States. In particular there was some contemplation of establishing a colony in Central America. He said, “If only Lincoln had survived, then America would be the kind of place that Nazi Germany aimed to be as well.” I tell you, it’s a shock to read these things but that is what he said.
Moyers: He was fond of Jefferson’s declaration in 1821 on the impossibility of racial coexistence: “It is certain that the two races equally free cannot live in the same government.”
Whitman: Yes, that’s just one quote from Jefferson, he said similar things earlier on as well. So you know, they remain our heroes but their world and their mindset were sometimes difficult for us to approve of.
Moyers: In your book you write: “Sometimes the American democratic political process produces admirable legislation but to have a common-law system like that of America is to have a system in which the traditions of the law do indeed have little power to ride herd on the demands of the politicians and when the politics is bad, the law can be very bad indeed.” You go on: “The resulting dangers have not vanished and it would be wrong to close this book without pointing to at least one contemporary realm of American law in which those dangers are still making themselves felt. The realm is American criminal justice. American criminal justice is spectacularly and frighteningly harsh by international standards. It includes practices that are sometimes uncomfortably reminiscent of those introduced by the Nazis.”
What is it that makes contemporary American justice so exceptionally harsh?
Whitman: Oh boy! Certainly, one critical answer is the sheer capacity of American politics and politicians to shape American criminal law and American criminal justice. Politicians in the US run on tough on crime platforms. It has to be added as well that both judges and prosecutors are elected officials in much of the US. That’s something unheard of in the rest of the world. And frankly, more humane traditions of the law do very little to stand in the way of translating the demands of politicians into law. In that respect, the situation in the US is really quite different from what we find now in Europe, where professional lawyers, professional criminologists and the like still manage criminal justice. I simply have to say it: the accessibility of the legal system to political influence was exactly what the radical Nazis admired most about America in the 1930s and that’s still doing tremendous damage to our criminal justice system today.
Moyers: Thank you so much, James Whitman.