What happens when lawyers and judges become mere politicians in robes governed by a perverse irrational political theory?

Hitler's American Model: The United States and the Making of Nazi Race LawHitler's American Model: The United States and the Making of Nazi Race Law by James Q. Whitman
My rating: 5 of 5 stars

Coming to this book I was already startled by the idea that the United States had "influenced" or "inspired" Nazi German policies during the rise of Hitler's Third Reich. Too simplistic in light of the author's conclusion which discusses the USA's common-law tradition and how it was that which the German lawyers sought to emulate even more. This is particularly disturbing as that common law tradition, for all the good it has contributed to American society and culture, has also been weaponized to rationalize the irrational and legalize the unlawful. Germany's lawyers operating under the Nazi regime discovered in America's philosophy of law the means to foment their version of legal realism towards a racist state which they were convinced the United States was destined to become but was being held back by liberal as well as formalistic legal appreciations.

Despite America's appeal to its founding documents the Constitution in amendments like the 14th, the Nazi lawyers keenly observed contradictory existence of a legal philosophical "loophole" the allowed politics and ideology to influence the creation and execution of racist laws that would allow for the creation of a "legal" second class citizenry (e.g. blacks, Puerto Ricans, Native Americans, etc.). Granted, as James Whitman emphasizes, this American legal tradition paved the way for social democracy to finally take root in American politics in the form of the New Deal and the civil rights movements but it was also used by racist political leaders to institutionalize racism. As Whitman warns in his conclusion, "...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."

Among a host of other things, Nazi Germany is a lesson of what happens when lawyers and judges become mere politicians in robes governed by a perverse irrational political theory that will stop at nothing to support heinous and cruel policies. Whitman correctly points to a current example in the USA: our criminal justice system. One of the most punitive in the democratic world that is negatively influenced by individuals --judges and prosecutors-- yielding primarily to ideological and political considerations that trump lawfulness while denying a reasonable path towards restorative justice. Even today, the American legal system remains vulnerable to the political headwinds that allow for racial injustice and the unequal treatment of "undesirables" to continue. This should put fear in the hearts of those concerned about the direction of American politics and how it will impact our courts, and our lives, for generations to come.

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