The Weekly Screed (#923)

“Devious pathways”

By David Benjamin

“Sharp social race separation of whites and blacks has shown itself to be necessary in the United States of America, even if it leads in certain cases to human hardness, as when a mongrel of predominantly white appearance is nevertheless reckoned among the niggers.”

                                 — Third Reich teacher’s guide, 1934

MADISON, Wis. — The Nazis whose race laws eventually spiraled down into the industrial extermination of six million Jews (and other “mongrels”) gazed admiringly and rather enviously toward the dizzying array of racist laws in the United States in the 1930s, but regarded the American example as a little bit too cruel. This Nazi dilemma is disturbingly documented in James Q. Whitman’s short but devastating historical comparison, Hitler’s American Model: The United States and the Making of Nazi Race Law.

Whitman notes that Nazi lawyers, as early as 1933, were beating the bushes hither and yon, seeking race laws they could mimic as a solution to Adolf Hitler’s “Jewish problem.” No statutory models were nearly as rich and “creative” as those that stretched from Carolina to California, except that America’s myriad Jim Crow and “anti-miscegenation” laws made the Nazis a teensy bit squeamish. Writes Whitman, “The painful paradox… is that Nazi lawyers, even radical ones, found American law on mongrelization too harsh to be embraced by the Third Reich.”

As a lifelong student of America’s original sin, I was  little surprised by the revelations Whitman exhaustively unscrolls in his book. But I was enlightened by his analysis of how the tension between “common law” and “civil law” advanced state-sponsored racism in both liberal America and fascist Germany.

Neither common nor civil law is inherently invidious. Each is just a way of doing things. Civil law stands as a fixed, inflexible canon defining right and wrong, liberties and crimes. Typically, civil law is handed down and decided from above, by state magistrates who “go by the book” without reflection or deviation. Precedent is its guiding light.

Common law derives its legitimacy from the will and ethics of the people. The simplest example of common law is “Do unto others as you would have them do unto you.” The Golden Rule is a moral beacon that guides each individual toward an ideal of justice.

The United States was built on common law. The Declaration of Independence is a manifesto of common law, announcing that the rigid structures imposed on the colonies by an imperial Great Britain were obsolete, oppressive and ill-suited to a far-flung outpost whose people, educated and prosperous, were chafing for self-determination and nostalgic for the Magna Carta.

Whitman’s comparison of American race laws and the Nuremberg Laws that were passed and formalized (into civil law answering solely to the Feuhrer) in 1935 illustrates two essential aspects of common law. First, as an apparent expression of the people whom it serves and the times from which it springs, common law is political — devised and implemented by politicians.

As Whitman writes, “… to have a common -law system like that of America is to have a system in which the traditions of the law do indeed 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.”

The U.S. Constitution shows how politicians sensitive to the favor of their peers and to their popularity among the riffraff, use the flexibility of common law to do ill, lastingly. This occurs in Article I, Section 2, in which anyone who is not a “free Person” is reduced to three-fifths of a human being not just for now but for all time and for all of his or her progeny. This pernicious insertion of systemic racism into the law of the land rears its head again in Article IV, Section 2, wherein any official in any state who nabs one of those “three-fifths” subhumans who has fled his or her bondage must be duly shackled and returned to the “owner.”

Whitman’s book does not emphasize this point, but he makes it clear that another curious feature of common law is that it inevitably ossifies into civil law, into a rigid and didactic adherence to written text and prior practice. Hence, the imaginative efforts of our common-law Founding Fathers to appease the numerous slave-owners in their midst gave civil-law precedence to the Supreme Court justices who agreed that Dred Scott was a slave and would always be a slave, no matter where his owners moved him. In that decision, sent down four years before the beginning of the Civil War, Chief Justice Roger Taney conveyed the monarchic  essence of civil law, by affirming that Negro slaves “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”

Yikes!

In Germany, Nazi legal scholars were fascinated — and occasionally outright giddy — over the malleability of U.S. race laws, as applied to slavery, race-mixing, segregation, Jim Crow and immigration. They realized that if the USA could set up a system of second-class citizenship, degradation, detention, displacement, separation and exclusion to black folks, native Americans, Japanese, Chinese and a melting-pot of other “mongrels,” Germany could pull this kind of crap on its Jews.

Citing statements by Roland Freisler, described by his biographer as “a murderer in the service of Hitler,” Whitman writes: “Even though America did not target the Jews, this American common-law style of legal racism, with its easygoing, open-ended, know-it-when-I-see-it way with the law, had a ‘primitivity’ that would ‘suit’ Nazi judges ‘perfectly.’”

In the Nuremberg Laws, the Nazis applied American common-law inventiveness to the drafting of measures that officially dehumanized millions of people and started moving them into concentration camps. Seven years later, on racial grounds, the United States built its own concentration camps.

Starting with the ratification of the Constitution, through Dred Scott vs. Sandford, followed by the passage of the Fourteenth Amendment and the post-Reconstruction establishment of Jim Crow laws throughout the land and the affirmation of American apartheid in Plessy v. Ferguson, followed by its repudiation in Brown v. Board of Education, only to finally circle back around to the revival of presidential bigotry (and new concentration camps) in 2016, America has yet to end its struggle with a legal quandary that inspired Hitler’s ragged blueprint for the Holocaust.

Whitman quotes in his book the insights of Heinrich Krieger, a Nazi lawyer who had studied at the University of Arkansas. Krieger saw an America “torn between the two ‘shaping forces’ of formalism and realism. When it came to race… there was on the one hand the formalistic jurisprudence of the Fourteenth Amendment, with its commitment, so ‘alien to life,’ to the equality of all human beings; and on the other hand the ‘realistic’ racism of a law that was rooted in the ‘legal intuitions of the American Volk,’ and that had produced the ingenious ‘devious pathways’ of second-class citizenship laws alongside the frank racism of anti-miscegenation statutes.”

One great conundrum of common law vs. civil law, which Whitman prudently sidesteps, is that a well-meaning American citizen can be on either side at various times and on the wrong side all the time.