Brent Staples op-ed that links the Jim Crow South to the Nazis from last May is making the rounds again today, for obvious reasons. One of the things Staples does is mention Jim Whitman's important new book, Hitler's American Model. I posted a little bit about this last June, which I want to repost now:
James Whitman's fabulous new book Hitler's American Model explores the Nazis' use of American precedents on race laws. There's a lot to say about it; I'd like to focus here on the fact that Whitman's book is much, much more about how Nazis thought about the US than about what the law in the US was, or whether there was some causation or "transplantation" from the southern US states to the Nazis. The Nazis were plenty capable of coming up with vicious race laws all by themselves -- but this is largely the story of how Nazi lawyers interpreted and spoke about the US' history of conquering Native Americans and then segregating African Americans. (There was, of course, criticism by the Nazis of the breakdown of the strict line separating the races in the US.) If this had been written in the 1950s, at the height of the myth and symbol school of American studies, it would have been called something like "The image of southern US law in the Nazi legal mind." Let me say to legal historians, you really need to read this book, soon. As I told a colleague this afternoon, this is the best book I've read in legal history in years, in large part I think because it seems so fresh. I've read books that are deeper but none in recent years that seem so original and iconoclastic.
I've been obsessed with the Nazis of late (probably like a lot of readers). Though I guess my interest in this goes back to the day as as a graduate student when I watched a bunch of Nazi era films at the Harvard film archives. How, I continue to wonder, did the person who wrote and starred in Das Blaue Licht become a leading filmmaker for the Nazis? I mean, my god, isn't that all about unjust persecution? Did Leni Riefenstahl ever consider in her later years what her younger self (who wrote about the persecution of the witch) would have thought of the Nazis? Maybe not. I guess that's how self-delusion works.
To return to my story, Whitman talks about a lot of things that are of interest to American legal historians, especially how the Nazis had a form of legal realism. This will cause me to rewrite at least somewhat my essay on Karl Llewellyn's lost work against lynching. But one of the more astonishing insights of many in Whitman's book is that Heinrich Krieger, who published a major study of the American race laws in 1936 also published an article, on Native Americans in the George Washington University Law Review in 1935. Holy cow. (And here I am thinking that the defense of the Confederacy and the constitutional vision of the pre-Civil War south in the Yale Law Journal in 1921 was bad). To be fair, Krieger's article is really about how the Constitution does not quite cover the category of dependent citizenship that had been assigned to Native Americans. If you didn't know Krieger was a Nazi lawyer, you wouldn't get that sense from this article, with maybe a few asides (such as a remark about the degeneration of Native Americans at 284). Though there are some other places where he seems to doubt the wisdom of recognizing that Native Americans have the same rights as other citizens. (at 307-08.) (And if you're interested in reading Krieger's book I've scanned it in here.)
I'm going to spend some time thinking all of this through, though I'm really slow at reading German these days, so this is going to be a long-term project for me. What interests me most about this book is the legal theory and how American law looks through the eyes of the Nazis. And how the Nazi perspective aligns -- or not -- with how we now think about the US' long history with race. One comment stuck with me from Whitman -- that the Nazis complained that the Americans tried to hide some of their grosser race laws.
The image is of the Lee Statue in Charlottesville.
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