Legal Scholar James Whitman: 'Trusting in Our Institutions' May Not Be Enough to Stop Trump

Donald Trump is less unusual than he may appear. It’s true that he does not value democratic norms or procedures, appears eager to restrain freedom of the press, has little respect for the rule of law, has encouraged violence against his enemies, leads a cult of personality, and has used misogyny, racism and militant nationalism to advance his political goals and cement control over his followers.

But contrary to fictions of American exceptionalism, Donald Trump is actually part of a long continuity of authoritarian and fascist leaders around the world, from at least the middle of the 20th century through to the present.

Trump’s voters and supporters wholeheartedly embrace his racist, authoritarian values. The most rabid and extreme elements of Trump’s base went on a white supremacist rampage several weeks ago in Charlottesville, Virginia, which resulted in the killing of Heather Heyer and injuries to dozens of other people.

Donald Trump’s proto-fascist movement is not isolated to the United States. It is part of a global phenomenon with tentacles in Europe and elsewhere. History can inform the American and global public’s understanding of this dangerous moment — and by doing so provide a warning of what the future may hold.

How should Trump’s movement be located relative to historical moments such as the rise of Adolf Hitler and the Nazis in Germany? Are America’s political and legal institutions able to withstand this authoritarian turn? How did American racism inform the Nazi racial project? In what ways are the Nazis’ pseudo-scientific obsessions with “miscegenation” and “racial purity” present in the “ethno-nationalism” advocated by Trump’s closest advisers? What can American civil rights advocates, lawyers, and others do to stand up against Trump’s assault on the law?

In an effort to answer these questions, I recently spoke with James Q. Whitman, a professor at Yale Law School and author of the new book “Hitler’s American Model: The United States and the Making of Nazi Race Law.”

Our conversation has been edited for length and clarity. A longer version can be heard on my podcast, which is available on Salon’s Featured Audio page.

How are you making sense of Donald Trump’s election?

I certainly didn’t expect it, that’s for sure. There are several factors which explain Trump’s victory. One very obvious one is economic inequality. There is a lot of unhappiness in this country among people who are being left behind. This creates political discontent. The other explanation is status resentment which is not about money or economics at all. Rather, it is the resentment of folks who feel themselves to be superior to other groups and want to reclaim their place on the top of the totem pole.

Public opinion and other research clearly show that Trump’s victory was fueled by white racism. Nevertheless, these feelings of victimology and “white oppression” are real for Trump’s supporters. The white supremacist terrorism in Charlottesville several weeks ago is a manifestation of this rage. I believe it’s all about social dominance behavior.

I think that’s exactly right. The resemblance to what went on in Germany in the interwar period is very, very strong. The basis of Nazi politics involve precisely the effort to play with these types of resentments. What the Nazis claimed precisely was that unlike the Communists they were not going to redistribute wealth; nothing like that was to go on in their Germany. They were going to redistribute honor,guaranteeing that every “racial German” could feel that he or she was a member of the “master race.” Saying nice things and that people really are equal often seems to just add fuel to the fire. It is hard not to worry.

As a scholar of American law, how do you think the country’s political and cultural institutions are doing in opposing Trump’s agenda?       

I think that American institutions are in fact holding up. But I’m less encouraged by that effect than others are. These same institutions have in fact served very well in the creation of exactly the sort of racist program that you are seeing advocated among white nationalists, neo-Nazis, members of the KKK and so on. This stuff is not alien to American institutions. It was largely produced by American institutions in the 19th and early 20th centuries.

Given that you have just completed a book on Nazism and America, what did you think about what happened in Charlottesville where young white people were chanting Nazi slogans such as “blood and soil’ and the “Jews will not replace us”?

I was shocked as I hope most people were when they saw what took place in Charlottesville. It is utterly scandalous and unexpected in the United States  –although I think the folks of the Southern Poverty Law Center and others who study the American far right were undoubtedly less surprised than the rest of us were. In some ways what happened there was just the appearance on the television screen for the first time of ugly phenomena that have been widespread for quite a while in many parts of the United States.

How did the Nazis and European “race scientists” view America?

What they saw in America was exactly what people still see in America, in a certain sense. They saw an extraordinarily creative, innovative legal culture that produced all kinds of inventive laws. They saw in America exactly the same thing that those who admire American corporation law or American contract law admire today. The big difference, of course, is what they were admiring was American race law of the late 19th and early 20th century.

The Nazis were not the first to have these feelings of admiration for American law. European far right-wingers have been talking about United States law from the late 19th century onwards. In the first place, talking about American immigration laws but also Jim Crow and a range of other American legal innovations.

What did the Nazis borrow from America’s anti-miscegenation laws?   

The Nazis took a great deal of interest in American eugenics — this is the science or, more accurately, the pseudo-science of breeding a “healthy” national population. American eugenicists, like American lawyers, were admired around the world for their brilliance and their innovativeness.

Those who thought that you had to breed a healthy population typically believed that “race mixing” was a bad thing and it produced what they would call “mongrels,” who were “racially inferior” to the “pure” original group. It was understood that it was a good idea to discourage interracial marriage. There was, however, a big difference in the United States. This country had a lot of actual law forbidding interracial marriage — and not just forbidding it but criminalizing it. This was of great interest to the Nazis. From early on, the Nazi Party wanted to criminalize interracial marriage but they found it very difficult to find any precedent or example elsewhere in the world. In the United States they found a precedent and used it in the creation of the Nuremberg Laws.

These ideas are still alive today with Trump and his inner circle, which has included people like Michael Anton, Stephen Miller, Sebastian Gorka and Steve Bannon, who endorse “ethno-nationalism” and traffic in white supremacist ideology.

The whole thing is appalling. Applying a particular logic, I imagine there could be such a thing as white nationalism that didn’t also involve white supremacy, that somehow it was important for ethno-nationalist reasons that white Anglo-Saxon Protestants should keep “their country” and nobody else should come in. But ultimately  it is very hard for me to disentangle the racist views or the white supremacist views from the nationalist views.

It is important to note how the United States was not alone in its commitment to the idea of white settler democracy. We find the same phenomenon elsewhere in places colonized by the British. In Australia you see a very similar pattern, New Zealand and South Africa of course, and in Canada as well. That’s part of what I learned in doing the research for this book and I have to say, it is a troubling and challenging fact that what reemerged with the white supremacists in Charlottesville, seems to grow out of a British tradition that we like to think of as a great source of liberty, democracy and equality for the world.

The color line is global. As such, the American political project is part of a global project of white supremacy, settler colonialism and domination over people of color.

And once you recognize this fact you find yourself viewing Nazism in a somewhat different light. What the Nazis were claiming to do in some ways was not that different from what the Americans had claimed to do, although of course there were depths of monstrosity in Nazi politics that had never been matched in the United States and hopefully will never be matched anywhere else. Nevertheless, the idea that Germany somehow had to create a new system of equality for all racial Germans, at the cost of other excluded and oppressed groups, is something that we see periodically in American history too.

You also have some counterintuitive findings in your book “Hitler’s American Model.” For example, the Nazis apparently found some of America’s racist laws too harsh and impractical.

It is important to begin by saying that in some sense, of course, any influence of American Jim Crow segregation had to be limited because the Nazis in the Nuremberg laws did not introduce segregation. They were not interested in separate water fountains or anything like that. They had taken an interest in segregation in the narrow sense. In the end, the most radical Nazis rejected Jim Crow on very interesting grounds. Their logic was that segregation can work against blacks in America because the blacks are already poor and oppressed, but if a population isn’t already poor and oppressed, then it is just not going to be effective. You have to have much harsher criminal measures. The Jews had resources, so they had to be exterminated. Segregation would not do the trick.

By contrast, the more moderate Nazis were making the argument that criminalization was not necessary and not appropriate. What you had to do was to engage in what they called “education and enlightenment,” where you had to make the German population understand that, as one prominent Nazi said, it was “sick to have sex with Jews,” you’ve just got to stay away from them. Moderate Nazis believed that having segregation, separate water fountains and separate schools would bring home the message to the German population. Those Nazi moderates lost in the end, of course.

What do you want readers of “Hitler’s American Model” to understand, in terms of this history and how it applies to the present?

The white supremacy we saw on full display in Charlottesville has a long history in the United States. Second, a lot of what Adolf Hitler and the Nazis liked about American law involves features of American law that are still with us. As I say, American law was uniquely inventive, and that’s largely because the American legislative process is uniquely open to political influence. We still have this extraordinarily vulnerable system where politics can introduce itself into the making of the law with horrific results, that have to do in particular with race relations in the United States. This is very clear when you consider the example of criminal justice today.

How can the law be used in this moment to stand against Donald Trump and the illiberal movement he represents?

We have a lot of very good constitutional law that can be invoked by the courts against his worst abuses. The courts, at least for a while, fought hard against the Muslim ban, and even the Supreme Court is not completely caving. In some ways, the American legal institutions can continue doing what they’ve always been doing. But I think it’s important for us to remember that what the courts have historically done has not always been good.

Just trusting in our institutions to retain their current form, or the form that they’ve had over the course of the last century, is not necessarily the formula for maintaining a just order in the United States. It is important for officials in the Justice Department and elsewhere to stand up and say no. I hope they are doing it. I very much hope they are doing it. I don’t think the man in charge — Jeffrey Sessions — is the guy we’d like to have there.

The Department of Justice is a big organization. There are lots of people who have room to say “no” to things. But do not forget that there were people like that in Nazi Germany who succeeded in saying “no” for a while. It’s not that it can’t happen. But ultimately, on the topic of resistance, at some point I do believe, even as a law professor, that the law just gives out.