Whitman, a professor at Yale Law School, wanted to know how the United States, a country grounded in such liberal principles as individual rights and the rule of law, could have produced legal ideas and practices "that seemed intriguing and attractive to Nazis." In exploring this apparent incongruity, his short book raises important questions about law, about political decisions that affect the scope of civic membership, and about the malleability of Enlightenment values.
Pushing back against scholarship that downplays the impact in Nazi Germany of the U.S. model of legal racism, Whitman marshals an array of evidence to support the likelihood "that the Nuremberg Laws themselves reflect direct American influence." As race law's global leader, Whitman stresses, America provided the most obvious point of reference for the September 1933 Preußische Denkschrift, the Prussian Memorandum, written by a legal team that included Roland Freisler, soon to emerge as the remarkably cruel president of the Nazi People's Court. American precedents also informed other crucial Nazi texts, including the National Socialist Handbook for Law and Legislation of 1934–35, edited by the future governor-general of Poland, Hans Frank, who was later hung at Nuremberg. A pivotal essay in that volume, Herbert Kier's recommendations for race legislation, devoted a quarter of its pages to U.S. legislation—which went beyond segregation to include rules governing American Indians, citizenship criteria for Filipinos and Puerto Ricans as well as African Americans, immigration regulations, and prohibitions against miscegenation in some 30 states. No other country, not even South Africa, possessed a comparably developed set of relevant laws.
Especially significant were the writings of the German lawyer Heinrich Krieger, "the single most important figure in the Nazi assimilation of American race law," who spent the 1933–34 academic year in Fayetteville as an exchange student at the University of Arkansas School of Law. Seeking to deploy historical and legal knowledge in the service of Aryan racial purity, Krieger studied a range of overseas race regimes, including contemporary South Africa, but discovered his foundation in American law. His deeply researched writings about the United States began with articles in 1934, some concerning American Indians and others pursuing an overarching assessment of U.S. race legislation—each a precursor to his landmark 1936 book, Das Rassenrecht in den Vereingten Staaten ("Race Law in the United States").
Whitman's "smoking gun" is the transcript of a June 5, 1934, conference of leading German lawyers gathered to exchange ideas about how best to operationalize a racist regime. The record reflects how the most extreme among them, who relied on Krieger's synoptic scholarship, were especially drawn to American legal codes based on white supremacy. The main conceptual idea was Freisler's. Race, he argued, is a political construction. In both America and Germany, the importance and meaning of race for the most part had been determined less by scientific realities or social conventions than by political decisions enshrined in law.
