“City on a Hill?”

Abstract

There are not many states that have legislated differential degrees of citizenship and rights based on allegedly racial grounds, at least after the ending of chattel slavery. Three that stand out are the United States, the Union (later Republic) of South Africa, and the Third Reich. The legal historian James Whitman has written an eye-opening study of the influence of the American states’ legalized racial disabilities (segregated public facilities and prohibition of interracial marriage) on the political and legal architects of National Socialist racial laws, in particular those announced at the Nuremberg Party rally in September 1935. He argues persuasively that the Nazi authorities admired the American racial regime (as they did many other aspects of the United States, such as its industrial prowess), studied it carefully, and sought to emulate those aspects that they could, but changing the target of the legislation from African Americans in the United States to Jews in Germany. Those Nazi lawyers inspired by the American legislation believed that U.S. racial awareness was hobbled by unwillingness to include Jews along with “coloreds” as a threat to its Volk. But appropriate German legislation, such as envisaged for Nuremberg, could overcome this American short-sightedness.