14 No. 77 JUSTICE These two laws are generally considered on their own terms and put forward as evidence of Nazi German ideological extremism. Simply put, I believe it is a mistake to view either of the Nuremberg laws — or Nazi racial attitudes, for that matter — as an aberration. On the contrary, they were consistent with, even if in extreme form, laws and attitudes that were commonplace elsewhere in the 1930s, including in the United States. As Yale Law School Professor James Q. Whitman has argued persuasively,20 the German jurists who conceived of and drafted the Nuremberg Laws looked to the American Jim Crow and anti-miscegenation statutes both as inspiration and as models. This was especially the case regarding the Law for the Protection of German Blood and German Honor. One influential legal memorandum circulated in September 1933 that, according to Whitman, “established the basic terms for what would become the Blood Law two years later,”21 pointedly noted that “It is well known, for example, that the southern states of North America maintain the most stringent separation between the white population and coloreds in both public and personal interactions.”22 The fact that the Nazi racial jurisprudence was heavily influenced by the example set by the United States should not be surprising to anyone who read Mein Kampf. There, Hitler wrote almost a decade before coming to power that anything more thoughtless, more hare-brained than our present-day citizenship laws scarcely exists. There is today one state in which at least weak beginnings toward a better conception are noticeable. Of course, it is not our model German Republic, but the American Union, in which an effort is made to consult reason at least partially. By refusing immigration on principle to elements in poor health, by simply excluding certain races from naturalization, it professes in slow beginnings a view which is peculiar to the folkish state concept.23 While the Reich Citizenship Law is essentially an unsophisticated rolling back of the 19th century emancipation of Jews and thus did not require complex judicial crafting, the philosophy behind it, even if not directly inspired by the Jim Crow Laws, certainly paralleled the racist ideology that kept Americans of color in what amounted to a state of de facto if not everywhere de jure disenfranchisement. At a meeting of the Commission on Criminal Law Reform on June 5, 1934, Roland Freisler, one of the most radical of the antisemitic German jurists who would in short order become the president of the notorious Nazi People’s Court, observed that the American Jim Crow legislation “would suit us perfectly, with a single exception. Over there they have in mind, practically speaking, only coloreds and half-coloreds, which includes mestizos and mulattoes; but the Jews, who are also of interest to us, are not reckoned among the coloreds.”24 For present purposes, it should suffice in this connection to consider the numerous state laws that segregated public schools until the U.S. Supreme Court held this practice to be unconstitutional in Brown v. Board of Education in 1954;25 and laws such as a 1924 Virginia statute headlined “Separation of Races” that required owners and operators of “any public hall, theatre, opera house, motion picture show or place of public entertainment or public assemblage which is attended by both white and colored persons, to separate the white race and the colored race,” and to set apart and designate in each such establishment separate sections for, respectively, white and colored persons.26 20. James Q. Whitman, HITLER’S AMERICAN MODEL: THE UNITED STATES AND THE MAKING OF NAZI RACE LAW (Princeton University Press 2017). 21. Id. at 84. 22. Id. at 86. 23. Supra note 6, at 439-440. 24. Supra note 20, at 108. 25. Brown v. Board of Education, 347 U.S. 483 (1954). 26. Separation of Races (1926), available at https://encyclopediavirginia.org/primary-documents/separation-of-races-1926/
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