THE OUTCOME OF INFLUENCE: HITLER'S AMERICAN MODEL AND TRANSNATIONAL LEGAL HISTORY.

• Author: Dudziak, Mary L.
• Position: Book review

HITLER'S AMERICAN MODEL: THE UNITED STATES AND THE MAKING OF NAZI RACE LAW. By James Q. Whitman. Princeton and Oxford: Princeton University Press. 2017. P. 161. Cloth, $24.95; paper, $14.95.

On July 17, 1935, William E. Dodd, the U.S. Ambassador to Germany, sent a disturbing dispatch to the Secretary of State: "SIR: I have the honor to report that the anti-Jewish wave, which evidence from all sides [is] showing to be gaining accumulative strength, has lately entered upon a particularly ugly phase." (1) American concern about anti-Semitism in Germany was not new, but Dodd warned that what had been an "ever-present undercurrent seems now to be developing into an offensive distinguished as much by the efficacy of its apparent organization by official quarters as by its brutality and ruthlessness." (2) Germans were now using a "new device ... the forces of the law, in contravention to the terms of the law itself," to prevent intermarriage between Jews and "Aryans." (3) The episode precipitating Dodd's report was a court decision upholding the refusal of a clerk in the town of Bad Suiza, Germany, to grant a marriage license to a Jewish woman and a man identified as Aryan. Such marriages were not unlawful in Germany at that time, but the court thought that the clerk "could not be expected to sanction a union 'adulterating Aryan blood and rendering it useless for all time from the national point of view.'" (4) More disturbing, the State Secret Police of Breslau apprehended six Jewish men and "six so-called German women" for "racial disgrace of a character dangerous to public safety and order." (5) Their crimes were being engaged to each other, or simply being seen together. Their disregard for "the racial commandments of our Reich," the local press reported, meant that these couples would be sent to a concentration camp. (6)

The concerned tone of Dodd's dispatch, and the fact that punishment for intermarriage warranted diplomatic notice on the part of the United States, evokes different kinds of reactions from contemporary readers. Knowing the brutality and inhumanity that would be coming to Hitler's Germany, (7) it is chilling to read this account and welcome to see American concern. But Dodd's response is also curious. In the United States in 1935, thirty states outlawed marriage between whites and blacks, with some more broadly outlawing interracial marriage. (8) African Americans were brutally tortured and killed for perceived violations of racial norms. (9) Did American diplomats reflect on the similarity? If German practices warranted international attention, was the same true of American racism? And perhaps most important of all, had American race law found its way to Germany so that American law itself might be complicit?

In his powerful book, James Q. Whitman (10) answers this last question with his title: Hitler's American Model: The United States and the Making of Nazi Race Law. He does not argue that American law helped enable the Holocaust. His argument is careful and is more focused: "[W]hen the leading Nazi jurists assembled in early June 1934 to debate how to institutionalize racism in the new Third Reich, they began by asking how the Americans did it" (p. 113). The Germans did not directly copy American law. Instead, U.S. examples showed "how natural and inevitable racist legislation was" (p. 123). Whitman's book is a focused examination of a troubling episode in transnational legal history and a reflection on the morality of American law.

In Part I, this Review will first trace Whitman's forensic examination of Nazi uses of American law. It will then examine an aspect of this history that the author repeatedly notes but does not deeply explore: the relationship between domestic law and foreign relations. Part II sets the writing of the Nuremberg Laws within the context of Nazi foreign policy, suggesting the kind of reasoning that may have informed concerns about the impact of domestic German law on foreign relations. Part III compares the transnational history of Nazi race law with the transnational history of American civil rights during the early Cold War era. Bringing together Hitler's American Model and the international impact of American civil rights reveals two insights. First, deeply contextualizing transnational histories reveals the way domestic law is a feature of international relations and the global history of ideas. Second, and most important, American law can serve as a global example, promoting both reform and also evil.

1. AMERICAN LAW AS AN EXAMPLE

   "No one wants to imagine," Whitman writes, "that America provided any measure of inspiration for Hitler" (p. 3). He seeks to correct "what most of us must think of as the obvious truth": that there was no American influence on Nazi law (p. 3). Whitman writes in a tone of moral outrage, carefully revealing his argument to readers he expects share his deep discomfort with the idea that American law played a role in what would become the murderous Nazi regime. Most scholarship directly on point, Whitman writes, rejects the idea that U.S. law was influential (pp. 3-4). This is in spite of the fact that, as the author details, historians have written of Nazi interest in other aspects of American life, from their praise for President Franklin D. Roosevelt's New Deal government in the early 1930s, (11) to engagement with the American eugenics movement, (12) to Hitler's admiration for the removal of and warfare against Native Americans. (13)

   Historians of the United States and the world are less likely to think it to be "obvious" that American ideas had no impact on the Nazis, (14) but all readers will appreciate Whitman's care and precision in examining the evidence. In two lengthy chapters, and introductory and concluding essays, he focuses deeply on important Nazi texts, and traces within them the appearance of American influence. Of great help to Americanists, Whitman provides his own translations of excerpts of key German sources. (15) He works to carefully dismantle the previous literature denying that the U.S. example influenced the Nazis. Because references to American law are, in some cases, explicit, Whitman's approach enables him to be convincing on his core question of whether Nazis were influenced by American law. In essence, they themselves said they were.

   Whitman argues that scholars have missed the influence of American law on Nazi legal development because they have looked in the wrong places and used the wrong interpretive tools (pp. 12-13). An overly narrow understanding of the legal history of American racism has led some scholars to restrict their search to segregation law (p. 33). Whitman, in contrast, makes his case for American influence by focusing more broadly on race-related legislation other than segregation: immigration and citizenship law and antimiscegenation law.

   The Nuremberg Laws, enacted in 1935, conferred full rights only on citizens of the German Reich (pp. 17, 29). A Reich citizen was a person "exclusively a national of German blood, or racially related blood, who demonstrates through his conduct that he is willing and suited to faithfully serve the German Volk and Reich." (16) The laws banned marriage between Germans and Jews and had other restrictions intended to protect what was thought of as the "purity of German blood" (pp. 30-32).

   When crafting the Nuremberg Laws, Germans looked to other countries for examples of how to draft immigration and citizenship law that would ensure ethnic homogeneity (p. 16). "[T]he United States came to be regarded as 'the leader in developing explicitly racist policies of nationality and immigration'" from the nineteenth century on, Whitman writes. (17) U.S. racial limits on immigration and naturalization were longstanding. The Naturalization Act of 1790 allowed naturalization of "any alien, being a free white person." (18) Anti-Asian legislation in the late nineteenth and early twentieth centuries was of particular interest. For example, in 1917 Congress created what was called the "Asiatic Barred Zone," which expanded upon previous restrictions on Chinese and Japanese immigration and prohibited entry into the United States of persons from much of Asia and the Pacific Islands. (19) These kinds of provisions put the United States "at the vanguard" of racist immigration restrictions (p. 36).

   Also useful to Germans was the American law of second-class citizenship. Until 1924, Native Americans were "nationals" but not citizens, and residents of Puerto Rico were "foreign ... in a domestic sense," lacking U.S. constitutional rights. (20) African Americans were constitutionally entitled to vote under the Fifteenth Amendment, but Southern states restricted access to the ballot through poll taxes, literacy tests, and "grandfather clauses" (p. 39).

   The Nazis were familiar with these American laws (p. 43). Adolf Hitler upheld the American example in Mein Kampf. After criticizing German law for lacking needed restrictions, he wrote that "[t]here is currently one state in which one can observe at least weak beginnings of a better conception. This is of course ... the American Union," which "categorically refuses the immigration of physically unhealthy elements, and simply excludes the immigration of certain races." (21) In Hitler's view, this allowed the United States to retain its positive "Nordic" racial character (p. 47).

   There is ample praise for American law in Nazi writings, but Whitman does not overread his sources. The Germans did not directly borrow American citizenship and disenfranchisement law in the sense of using American statutes as a direct template (pp. 70-72). Instead, Whitman makes a modest, well-supported argument that American law served as "a point of reference," turned to as a positive example as the Nazis codified their own brutal forms of repression (pp. 50, 70-72).

   In the Law for the Protection of German Blood and German Honor, however...