In a memorable scene from the movie "Judgment at Nuremberg," the defence lawyer played by Maximilian Schell reads a legal opinion to the court: “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange indeed, if it could not call upon those who already sapped the strength of the state for these lesser sacrifices in order to prevent our being swamped by incompetence. It is better for all the world if, instead of waiting to execute degenerate offsprings for crime or to let them starve for their imbecility, society can prevent their propagation by medical means in the first place. Three generations of imbeciles are enough.” Snapping the book closed, Schell continues, “The opinion upholds the sterilization law in the State of Virginia, of the United States and was written and delivered by that great American jurist Supreme Court Justice, Oliver Wendell Holmes.” It is an unsettling moment in the film. Although the American precedent is not developed any further, it hints at a disturbing reality.
Could Oliver Wendell Holmes really have written such a thing? Could the words have been taken out of context? Could it be more than a rhetorical flourish? While racism was there for all to see in the American South with its segregationist Jim Crow laws, putting America side-by-side with Nazi Germany sounds almost obscene. And even if we must acknowledge that the Nazis regularly quoted U.S. eugenicists and U.S. race laws as precedents, we want to believe that such efforts were sheer propaganda, a shabby effort to put a veneer of respectability on their own odious regime.
Unfortunately, as J. Q. Whitman shows in Hitler's American Model: The United States and the Making of Nazi Race Law, the truth is much uglier than this. The truth is that the Nazis undertook a deep and sustained study of the laws of America as they were designing their infamous anti-Semitic Nuremberg Laws, because America was for them, as Hitler himself said in Mein Kampf, the one state that had made progress in developing a “healthy racial order.” To be sure, Britain was no slouch, along with its colonies and dominions, when it came to racist immigration preferences, treatment of non-whites, and so on. But America appealed to the Nazis more by being explicit in its laws—and harsher. Until at least 1936 Nazi Germany remained hopeful that it could “reach out the hand of friendship” to the U.S. on the basis of a shared commitment to white supremacy.
This may seem at first to be an extreme interpretation, but doubts quickly disappear as Whitman, Professor of Comparative and Foreign Law at Yale Law School, offers copious quotations from German texts of the 1930s. With chilling effectiveness, Hitler's American Model reveals how deeply a second current runs in the American system, counter to its high ideals of freedom, equality, and the rights of man, a current of white, even Aryan, racism.
While today Jim Crow laws probably come to mind most easily for us, they were not the focus of the Nazis who, after all, did not plan to create an apartheid regime. Their aim was—before the 1942 Wannsee Conference and its genocidal Final Solution—to drive non-Aryans out of the country and create a racially pure state. Their tools would be new laws on citizenship and sexual relations.
Citizenship law in America drew a clear race line as far back as 1790 when the Naturalization Act allowed citizenship to “any alien, being a free white person.” In the following century denying citizenship to Asians became the focus. Indigenous peoples were marginalized by being deemed “nationals” but not citizens. And when the Spanish-American War brought new non-white peoples into the American system, the U.S. Supreme Court allowed the creation of second-class citizenship for Puerto Rican and Filipino subjects, a disempowered status of “non-citizen nationals,” “foreign to the United States in a domestic sense.”
African-Americans presented a special difficulty as a result of the Fourteenth Amendment of 1868, which gave them citizenship rights; however, the Nazis were careful to note that, especially at the state level, “all means are used to render the Negro’s right to vote illusory” through petty measures such as poll taxes, literacy tests, etc. Most states, too, had laws to restrict African-Americans in their freedom of movement and career possibilities. The few Asians and Mexicans who had made it into the country had their voting rights blocked with similar legislation. Legal ingenuity such as this was appreciated by the Nazis, and in the case of the Czechs they did use a second-class status similar to the American example. But within Germany they were determined to be direct in their purposes by instituting straightforward racist laws.
According to Whitman, from the late nineteenth century to the 1920s and 1930s the United States came to be regarded not just by the Nazis but throughout Europe as “the leader in developing explicitly racist policies of nationality and immigration.” As the National Socialist Handbook put it, until the coming of Hitler, the United States had held “the leadership of the white peoples” in the “Aryan struggle for world domination”—although it had merely groped its way toward the historic mission to be undertaken by Germany.
The passing of the U.S. Immigration Act in 1924 delighted Hitler. He took as a given its Asian Exclusion Act (an extension of the 1922 Cable Act which revoked the citizenship of American women who married an Asian), but the National Origins Act struck him as especially revealing, for it favoured immigrants from the “Nordic” countries while limiting immigrants from southern and eastern Europe. For him it was a prime example of völkisch citizenship legislation—in fact, the only in modern times. Hitler spoke of it in combination with the earlier genocidal wars on indigenous peoples, believing that it showed clearly that the U.S. was “the model of a state organized on principles of Rasse and Raum,” that is, on the principles of race and the seizure of territory for a völk defined by race.
But immigration and citizenship laws are not enough to create a racially pure nation. There had to be metrics to determine the degree of acceptable racial purity and laws to prevent racially mixed births ("mongrelization," in Germany, "miscegenation" in America). Here again America provided the precedents for Germany, and in particular for the Nuremberg Blood Law where, according to Whitman, the American model is seen at its most influential. In many societies mixed marriages have been discouraged through social constraints and sometimes they have been annulled as a matter of civil law, but historically bigamy has been the only form of marriage subject to criminalization and prosecution. In their review of American legislation, the Nazi researchers found that thirty states had passed criminal laws against miscegenation, some of them with penalties as severe as ten years imprisonment. (Virginia continued to enforce its miscegenation statute until 1967, when the Supreme Court, in the case of Richard and Mildred Loving, struck it down. See the 2016 Hollywood film, “Loving.”) The Nazis passed their own criminal laws against race mixing, but the Americans, they thought, had been too harsh, especially with the “one-drop” rule that some states used to define Negroes. As a result, the Reich Citizenship Law of 1935 was milder, defining a Jew as a person having three Jewish grandparents; and it allowed as a mitigating factor the degree of a person’s assimilation into non-Jewish society. The Jim Crow laws, too, were seen by the Nazis as going too far; German laws prohibited German women from consorting “indecently” with black men in public, but they did not place sanctions on private behaviour, as in the U.S.
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