Until the recent presidential election cycle, most of us had never heard of the “alt-right.” To those of us who had (likely because we spend too much time on social media), the term evoked a murky fringe. We thought of alienated, white 20-something men in their parents’ basements, spreading hateful propaganda and harassing women online in a desperate search for validation. We weren’t wrong, but in our new, Trumpian reality, leaders of the alt-right fringe have moved into the mainstream.
In November, we saw Richard Spencer, president of the “white nationalist” National Policy Institute, leading victory celebrations in the nation’s capital, his audience joyfully “Heil Trumping” in public. And although Breitbart editor Steve Bannon may no longer sit on the National Security Council, the fact that the impresario of a right-wing hate rag still occupies a position of influence in the White House is stomach-churning enough.
Spencer coined the term “alt-right” in 2008 to describe a range of extreme, reactionary ideologies. Most notoriously by now, these include “race realism,” which holds that “the races” are fundamentally different, that whites must live apart or risk “race suicide,” and that anyone who tells you different is a sentimental fool or a communist. Adherents read measures such as the “Muslim Ban” and racially targeted immigration enforcement as clear endorsements of their worldview.
Many observers have condemned the term “alt-right” as obfuscation—an attempt by standard-issue right-wing hate groups to rebrand themselves as something respectable-sounding. For example, in a New York Times opinion piecepublished shortly after the election, historian Kelly J. Baker correctly pointed out that the alt-right is an extension of earlier white-supremacist movements and shares much with the scientific racists and white-supremacist propagandists of the early 20th century—people like the millionaire philanthropist and eugenics advocate Madison Grant, whose books Hitler admired. For Baker, Grant and others also prefigure the alt-right’s attempts to dress up or hide white-supremacist ideas in terms that might gain broader acceptance in respectable circles. The KKK, but in suits.
In one sense this injunction is well taken. There is nothing especially novel about the grab bag of racists, conspiracy theorists, hard libertarians, and neo-fascists who have coalesced under this label, other than the particular forms of bad behavior that the internet facilitates. However, in reminding ourselves that these movements peddle plain, old-fashioned racism, we risk forgetting something else. Although it may be comforting to imagine that racism needs to be disguised in order to appeal to a broad, educated audience, the Klan always had on suits under their robes. “Race realism” once represented the common sense of the US scientific establishment, and its tenets offered justification for racial discrimination in American law.
In his new book, Hitler’s American Model: The United States and the Making of Nazi Race Law, legal scholar James Q. Whitman shows that America’s regime of legal discrimination drew the admiration of the most notorious “race realists” of the 20th century, the Nazi regime. The mutual regard of Nazi and US eugenicists is well known to historians of scientific racism. (Edwin Black’s 2003 War Against the Weak brings together many threads of this story.) We know, for instance, that Hitler wrote a fan letter to Grant, and that his writings and speeches exhibited an approving awareness of US compulsory sterilization laws, racial restrictions on immigration, and—especially—exterminatory policies toward Native Americans.
On the US side, the eugenicist Harry Laughlin published a translation of the 1933 German Law for the Prevention of Defective Progeny in his Eugenical News. He noted proudly that the Nazi law, like several similar American state laws, was patterned on a model that he drafted. As late as 1940, the American writer Lothrop Stoddard published a book subtitled “A Sympathetic Report from Hitler’s Wartime Reich.” By then, admiration for Germany was unfashionable, but for most of his career Stoddard had been a respected expert on international relations whose work, alongside Grant’s, brought the idea of “race suicide” into the scientific mainstream.
Whitman brings legal theory into this story, showing that the jurists charged with working out the early phases of the Nazi legal regime showed intense interest in American racial jurisprudence. Nazi thinkers examined legal practices in other settler colonial states as well (and while Whitman only mentions it in passing, German scientists and administrators had already used German-controlled South West Africa—now Namibia—as a laboratory and testing ground for techniques of racial degradation and extermination). Nonetheless, the Nazi lawyers Whitman discusses saw the United States as “the leading racist jurisdiction”—the prototype of a legal regime addressing how a Nordic Volk could deal with foreign races living in their midst. As a result, they went on study trips to the US; published articles, books, and bureaucratic reports on American legal practices; and met with American legal experts.
Drawing on meeting transcripts, memos, and published work, Whitman argues that US models inspired the lawyers working to craft the Nuremburg laws that stripped Jews of citizenship, barred mixed marriages, and prohibited what the Americans called “miscegenation.” Dismayingly, the US example appealed primarily to the most extreme Nazi thinkers.
In Whitman’s telling, a faction of (relatively) moderate judicial conservatives were concerned that American-style measures would violate settled German legal principles. These qualms were not moral. Rather, the conservatives “insist[ed] that the Nazi program of persecution conform to the logic and strictures of the highly developed ‘legal science’ for which Germany was famous.” For their taste, American law was too messy to be of much help. Its patchwork of state and federal measures was riven with contradictions and lacked consistent ways to determine who belonged to which race, among other failings.
For the (ultimately triumphant) extremists, on the other hand, this incoherence was the American legal regime’s greatest virtue. “Technical doctrinal concerns” such as precise definitions and consistent application did not bog down the Americans. The (particularly murderous) Nazi judge Roland Freisler approvingly observed that American law exhibited a “primitive,” “political” spirit. Another proponent of radical measures, Hans Kier, wrote in 1934 that “the variegated abundance of statutory racial regulation in the States of the Union demonstrates that the elemental force of the necessity of segregating humans according to their racial descent makes itself felt even when a political ideology”—egalitarianism, enshrined in the 14th Amendment—“stands in the way.” US jurisprudence, that is, exhibited a bracing “realism”: when legal doctrine met racial “reality,” the former gave way.
It is worth noting, too, that the Nazi understanding of American jurisprudence had ample precedent at the highest levels of American scholarship. Woodrow Wilson’s 1902 History of the American People depicted the rise of the Ku Klux Klan as a natural response to unnatural law—if a “tyrannical” minority had tried, via Reconstruction policies, to put blacks and whites on equal footing, the “real laws” of the Southern states would nonetheless assert themselves.
Conventional wisdom among white political scientists and legal experts around that time held that the same logic justified Jim Crow laws: subterfuges meant to deny African American political and civil rights reflected a healthy refusal to allow constitutional strictures to overweigh “anthropological” realities. As Baltimore Attorney General John Rose told a supportive audience at the American Political Science Association in 1905, anyone discomfited by such tactics would do well to remember that “all things that are lawful are not expedient.”
It is not surprising, then, that Nazi thinkers found in the American example a rationale for casting off any constraints that German legal tradition might have placed on their persecution of the Jews. Still, this is a disturbing story, and one that casts a harsh light on conventional accounts of American history. Such accounts look back at interwar America and see a flawed but fundamentally liberal society. Nazis looked at early 20th-century America and saw themselves.
For Whitman, our discomfort should extend to the American common-law tradition and the “legal realism” that celebrates it. This current in legal theory, which came to the fore in the US in the 1920s and ’30s, “looked beyond the black letter of the law in order to grapple with larger social and cultural forces,” and Whitman makes a convincing case that the more extreme Nazis saw much to commend in it. He draws the lesson that to have a “common-law system like that of America is to have a system in which the traditions of the law … have little power to ride herd on the demands of the politicians, and when the politics is bad, the law can be very bad indeed.”
While this is true on its face, the implication that a European-style civil-law tradition might be better seems shaky. As it happened, the well-developed German science of law was ineffectual against the Nazi assault and did nothing to restrain the Germans from committing genocide against the Nama and Herero three decades previous. Moreover, the traditionalists and formalists criticized by “realists” on both sides of the Atlantic were no less committed to racial hierarchy. Whitman takes pains to emphasize that most of the judicial conservatives he invokes were staunch anti-Semites, and happy with racial persecution as long as it was carefully done. For their part, many US proponents of Germanic legalism made American “realists” look like racial moderates.
To give just one example, the premiere American advocate of a German-style legal science at the turn of the 20th century was John W. Burgess, a professor of constitutional law at Columbia and the founder of that university’s pioneering School of Political Science. Wilson and other antiformalists tended to advocate permanent second-class status for African Americans and colonial subjects; Burgess proposed ethnic cleansing, justifying the decimation of indigenous people on the grounds that there was “no human right to the status of barbarism” and affirming that government might “righteously deport” any “ethnically hostile population.”
This suggests that the problem with the early 20th-century version of “race realism” was less its “realism” than its racial ideology. Still, Whitman’s bracing and well-researched account should remind us that the nativism and racism on the rise in America today are in no way foreign to our traditions. Nor have they belonged mainly to the unwashed and poorly educated. On the contrary, it is only in the middle of the last century that the idea of racial equality began to enter the mainstream, and only in the post–civil rights era that at least some lip service to that ideal became mandatory in polite circles.
It is certainly shocking to see bald-faced, open racists like Jeff Sessions and alt-right leaders like Steve Bannon in positions of such great power and esteem. But it probably shouldn’t be—as Whitman reminds us, for much of the last century members of our esteemed upper classes were the ones who wove racism into the fabric of our legal system.