Why Must Read Hitler's American Model: The United States and the Making of Nazi Race Law?

I wrote an extended review of Hitler's American Model for a law school course in legal history, so I have many thoughts. To put it briefly, I think the book has a fatal lack of historical context. Whitman’s marshaling of primary Nazi sources is impressive. He cites an incredible wealth of documents geared both to the mass membership of the Party and more technically-minded lawyers and officials, all of which make laudatory references to American law on racial matters. While praise for American law from such reprehensible sources helps to drive home the wretched legacy of American legalized racial discrimination, the most shocking of Whitman’s claims are untenable. He cites extensive Nazi references to American race-based immigration law as evidence of its influence on the Nuremberg Laws’ citizenship provision. But Nazi citizenship law was concerned with stripping political rights away from Jews who had been born Germans, and it is not a comparable area of law to that governing the admission of foreigners. While Whitman is stronger in his argument that Nazis may have looked to the Insular Cases and Indian law in America for examples on second-class citizenship, he devotes less space and has fewer sources on these issues. Whitman also makes rather extreme conclusions about the nature of American legal culture and the legal realist doctrine fashionable in the 1930s, based on Nazi perceptions of them, which unfairly maligns the impact of legal realism in reversing the American racial laws that the Nazis found so admirable. Whitman’s greatest fault, however, is his failure to contextualize his key source in its place in Nazi history and hierarchy. His scant attention to the Nazi rejection of rule of law on ideological principle is a gross oversight, particularly for lay or legal readers who may be unfamiliar with Nazi history and thought. Fatal to his claim of an American model for the Nuremberg Laws is his failure to demonstrate substantive links between Nazi writing on American law or the June 1934 commission meeting (which he basis most of his argument on) to the laws that were promulgated in September 1935. The commission and its leaders were outside the core of Nazi power and at odds with its philosophy, making Whitman’s reliance on it as essential to Third Reich lawmaking very questionable. Furthermore, an examination of the actual drafting and enforcement of the Nuremberg Laws—which is totally unaddressed by Whitman—reveals no hint of the discussion of American law being of import. Not to delve too far into detail, but Whitman bases most of his book on a transcript of a June 1934 criminal law reform commission meeting which included in-depth discussion of American race laws and comparing them to Nazi proposals for anti-Jewish laws. What he fails to mention is that the chair of the meeting, Justice Minister Gürtner, was a nationalist conservative holdover who had been in office since 1932, only joining the Nazi Party in 1937. Contrary to Nazi ideology, he firmly believed in the use of written law and procedures, and had established the commission to revise the Reich Criminal Code of 1871 in accordance with Nazi ideology. According to preeminent historian of the Third Reich, Richard J. Evans, the commission was unable to keep up with the continuous creation of new criminal offenses by the regime, and its “legalistic pedantry” was rejected by Nazis who refused to put its drafts into effect. The commission was thus an unimportant feature of Third Reich policymaking, which perhaps explains why its June 1934 transcript garnered so little attention from scholars before Whitman, despite being first published in 1989. Despite the failure of his most sensational claims of American law serving as a model for a genocidal regime, Whitman’s extensive collection of Nazi discussions of American race law is of some interest, providing a reflection of our law in a dark mirror. As Whitman correctly states in a moment of restraint, “Seeing America through Nazi eyes does tell us things we did not know, or had not fully reckoned with—things about the nature and dimensions of American racism, and things about the place of America in the larger world history of racism.” As a work of persuasive scholarship, however, Hitler's American Model is a failure.