Hitler's American Model

The United States and the Making of Nazi Race Law

James Q. Whitman

• Publisher: Princeton University Press
• Year: 2017
• ISBN:
  9781400884636
• Topic: History
• Subtopic: German History
• Index: History

How American race law provided a blueprint for Nazi Germany Nazism triumphed in Germany during the high era of Jim Crow laws in the United States. Did the American regime of racial oppression in any way inspire the Nazis? The unsettling answer is yes. In Hitler's American Model, James Whitman presents a detailed investigation of the American impact on the notorious Nuremberg Laws, the centerpiece anti-Jewish legislation of the Nazi regime. Contrary to those who have insisted that there was no meaningful connection between American and German racial repression, Whitman demonstrates that the Nazis took a real, sustained, significant, and revealing interest in American race policies.As Whitman shows, the Nuremberg Laws were crafted in an atmosphere of considerable attention to the precedents American race laws had to offer. German praise for American practices, already found in Hitler's Mein Kampf, was continuous throughout the early 1930s, and the most radical Nazi lawyers were eager advocates of the use of American models. But while Jim Crow segregation was one aspect of American law that appealed to Nazi radicals, it was not the most consequential one. Rather, both American citizenship and antimiscegenation laws proved directly relevant to the two principal Nuremberg Laws—the Citizenship Law and the Blood Law. Whitman looks at the ultimate, ugly irony that when Nazis rejected American practices, it was sometimes not because they found them too enlightened, but too harsh.Indelibly linking American race laws to the shaping of Nazi policies in Germany, Hitler's American Model upends understandings of America's influence on racist practices in the wider world.

CHAPTER 1

MAKING NAZI FLAGS AND NAZI CITIZENS

The racially pure and still unmixed German has risen to become master of the American continent, and he will remain the master, as long as he does not fall victim to racial pollution.

—Adolf Hitler, Mein Kampf¹

It is a curiosity to pick up the New York Times for September 16, 1935. The lead article for that day reported on one of darkest moments in the history of modern racism with the following headline, bolded and in large type: “REICH ADOPTS SWASTIKA AS NATION’S OFFICIAL FLAG; Hitler’s Reply to ‘Insult.’”² This was how the Times, like most other American newspapers, reported on the promulgation, one day earlier, of the most infamous piece of race legislation of the interwar era, the Nazi Nuremberg Laws. Only below did the paper add, in less aggressive type, a reference to what we remember, and revile, about Nuremberg: “Anti-Jewish Laws Passed. Non-‘Aryans’ Deprived of Citizenship and Right to Intermarry.” These were the measures we call “the Nuremberg Laws” today—the measures that signaled the full-scale creation of a racist state in a Germany on the road to the Holocaust. Why weren’t the American headlines about them?

The answer has to do with the political genesis of the Nuremberg Laws—and it testifies to the complexity and ambivalence of relations between Nazi Germany and New Deal America in the early 1930s. There were moments, during the frightening and uncertain years from 1933 through 1936, when Nazi views of the United States were marked by anti-American resentment, hatred toward American Jews, and contempt for American constitutional values; but there were also moments when Nazis expressed hope for a future of good relations, and a belief in the kinship between the United States and Germany as countries both committed to maintaining “Nordic” supremacy.

The September 16 headlines in the American press had to do with a case of Nazi hatred toward American Jews. The Nuremberg Laws were indeed presented to the world as Nazi Germany’s response to an “insult” to the swastika flag—and the “insult” in question had taken place in New York City. This was the so-called Bremen Incident of late July 1935, when rioters ripped the swastika from the German ocean liner SS Bremen. The rioters were arrested, only to be released by a Jewish magistrate named Louis Brodsky. It was in response to Brodsky’s decision that the Nazis proclaimed the first of the three Nuremberg Laws, the Reich Flag Law, which enshrined the swastika as the exclusive national emblem of Germany. The triumph of the swastika in Germany can thus be said to symbolize, to some degree, the Nazi rejection of the liberal currents in American life, and of the place of Jews in American society.

But the other two Nuremberg Laws, those that deprived German Jews of the right of citizenship and the right to intermarry, the ones we remember today as the Nuremberg Laws, were different. They were not presented to the world as a rejection of America. In fact, when Hitler and Göring proclaimed the two new anti-Jewish laws at Nuremberg, they did so in speeches that were decorated with expressions of friendship toward the Roosevelt administration and the United States. And the uncomfortable truth, as we shall see in this chapter and the next, is that the two anti-Jewish measures that we call the Nuremberg Laws today, far from marking a clear German rejection of all American values, were crafted in an atmosphere of considerable interest in, and respect for, what the example of American race law had to offer; and they brought German law significantly closer in line with American law than had previously been the case.

THE FIRST NUREMBERG LAW: OF NEW YORK JEWS AND NAZI FLAGS

When we speak of the “Nuremberg Laws” today, we (like Germans of the Nazi era)³ refer only to the second and third out of three. These two were the Citizenship Law, which subjected Jews to a form of second-class citizenship, and the Blood Law, which criminalized marriage and sexual relations between Jews and “Aryans.” Nevertheless, there were indeed three laws proclaimed at what the Nazis called the “Party Rally of Freedom” at Nuremberg on September 15, 1935; and in describing the politics of Nuremberg, and America’s place in the Nazi legal mind of the early 1930s, it is appropriate to begin where the American newspapers began: with the first of them, the Reichsflaggengesetz, the Flag Law for the Reich, and the Bremen Incident that provoked it. The history of Flag Law is a window into the murky currents and countercurrents of hostility and tentative amity that characterized Nazi attitudes toward New Deal America in the early 1930s.

The Bremen Incident occurred in New York on July 26, 1935, during a hot summer marked by diplomatic clashes and street-level violence between New York opponents of Hitler and pro-German demonstrators.⁴ That evening some one thousand rioters, characterized by police reports as including “communist sympathizers,” stormed the SS Bremen, one of the swiftest liners on the Atlantic and the pride of German engineering.⁵ Five of the demonstrators managed to clamber aboard, rip the swastika down, and toss it into the Hudson River.

The five were arrested, but a diplomatic crisis broke out that rumbled ominously for weeks. Immediately after the episode, the US State Department made an effort to calm the situation, sending a note expressing its regret that “the German national emblem should … not have received the respect to which it is entitled”;⁶ whatever hostility to Hitler there may have been in the streets of New York, the administration was anxious, at this point in its history, to maintain good relations with the Third Reich.⁷ Nevertheless throughout the late summer the German press kept matters at a boil. The crisis reached its climax on September 6, a week before the opening ceremonies of the Nuremberg Rally, when Manhattan Magistrate Louis Brodsky ordered the release of the five arrested rioters, while delivering a fiery opinion denouncing Nazism in the name of American freedoms.

Louis Brodsky, the New York Jew who triggered the Nuremberg Laws, was an improbable protagonist in an international diplomatic crisis. His career was shaped by both the opportunities and the obstacles that early twentieth-century America presented to Jews. He graduated from NYU Law School in 1901, at the remarkable age of seventeen.⁸ But Jewish lawyers did not find it easy to make their way into prestigious law firms or judgeships in early twentieth-century America. It was certainly infinitely better to be a Jewish lawyer in the United States than in Nazi Germany, but it was still tough (as the Nazi literature of the early 1930s gleefully observed),⁹ and Brodsky took a different route. Through the sponsorship of Tammany Hall, the corrupt New York Democratic political machine that often promoted the interests of ethnic minorities, he landed a patronage job as a magistrate in the Lower Manhattan detention center known as the Tombs.¹⁰

Tombs magistrates were very low-level judicial officers, responsible for bail hearings, night court, and the like,¹¹ and a whiff of corruption often clung to Tammany appointees. (Brodsky himself survived charges of corruption in 1931.)¹² Nevertheless Brodsky was a man who used his lowly patronage office to issue thunderous civil libertarian opinions of the kind more commonly authored by justices of the Supreme Court. Brodsky may have been a beneficiary of Tammany Hall politics, but he (like other Tammany figures)¹³ was also an ardent champion of American constitutional rights. In 1931 he stirred up a scandal by permitting the distribution of pornographic novels.¹⁴ In April 1935 he made headlines again when he released two nude dancers who had been arrested at a Greenwich Village club, declaring from his police court bench, heroically, that “nudity is no longer considered indecent.”¹⁵ (On the same night another magistrate had no difficulty charging nude dancers busted at Minsky’s burlesque.)¹⁶ And when the Bremen rioters came before him in early September, Brodsky seized on the opportunity to proclaim the values of America and denounce the Nazis. The swastika, he wrote, was a “black flag of piracy,” and it stood for everything the United States opposed. To fly it was “a gratuitously brazen flaunting of an emblem which symbolizes all that is antithetical to American ideals of the God given and inalienable rights of all peoples to life, liberty and the pursuit of happiness.…[Nazism represents] a revolt against civilization—in brief, if I may borrow a biological concept, an atavistic throwback to pre-medieval, if not barbaric, social and political conditions.”¹⁷ These were stirring words, true in every particular; God bless Louis Brodsky for uttering them; but it is far from clear that a police court magistrate had any business issuing any such opinion, or for that matter any clear basis in law for releasing the rioters.

Figure 1. From the Bradford Era newspaper, photo of Louis B. Brodsky, 1935.

In any case, Brodsky was Jewish, and his opinion was bait to the Nazis. The Roosevelt administration scrambled, once again, to disavow his action. The administration pressured New York Governor Herbert Lehman to declare that Brodsky had exceeded his authority, and Secretary of State Cordell Hull issued a formal apology to the Reich on the very day that the Nuremberg Laws were proclaimed.¹⁸ But Minister of Propaganda Joseph Goebbels had already decided to use the Brodsky opinion for Nazi political purposes.

In fact, Brodsky’s opinion was something of a propaganda gift to the Nazis: it provided them with a welcome opportunity to solidify their mastery over the Reich. Brodsky’s opinion thrust him into the middle of a conflict over political symbolism in Nazi Germany. In September 1935, as the Nuremberg “Rally of Freedom” approached, the Nazi takeover of Germany was not yet symbolically complete. During the early period after Hitler’s ascent to power in January 1933, the Nazi Party was forced to share authority with other right-wingers: nationalist conservatives, whose number included powerful figures such as President Paul von Hindenburg and former Chancellor Kurt von Schleicher. These were men who detested the democratic ways of the Weimar Republic, and who were willing to cooperate with the Nazis, but who maintained a degree of distance from the Nazi program. It was these nationalist conservatives who made the tragic miscalculation of placing Hitler in the Chancellorship of the Reich, confident that they could control him. As we all know, events rapidly proved them wrong: within weeks after Hitler took office on January 30, 1933, the Nazis were well on their way to full domination, in the course of the familiar nightmare sequence that marked Germany’s descent into dictatorship: the Reichstag Fire of February 27, the elections of March 5, and finally the Enabling Act of March 24, which conferred dictatorial authority on Hitler.¹⁹

Nevertheless, both during and after these frightening developments, Hindenburg remained President, and even after his death in the summer of 1934, nationalist conservatives retained a role in the government of the Reich. Indeed, they enjoyed an official symbolic recognition of their right to a share of power in Germany: by a special decree of President Hindenburg, issued on March 12, 1933, whereas all other nations flew only one flag, the German Reich flew two flags together—on the one hand the swastika, described in Hindenburg’s decree as representing “the mighty renaissance of the German nation” achieved by Nazism, and alongside it a plain flag with black, white, and red bars, described as representing “the glorious past of the German Reich,” the symbolic territory of the more traditionalist right wing.²⁰ Carl Schmitt praised this peculiar two-faced national symbolism a means of “ceremoniously denying the Weimar system” without definitively raising one group of Weimar opponents over another. It conspicuously represented the limits of Nazi authority...