If slavery was America’s original sin, as so many commentators have said, then race-based restrictions and eugenic sterilization were the twisted progeny of the nation’s exile from Eden. Two recent books by prominent legal scholars explore these dark corners of American history with new insight. No one comes off looking good in either book, but that is typically the case with the consequences of an original sin. If racism is the fundamental flaw in the American character, it will inevitably come out even in our heroes.

In Hitler’s American Model: The United States and the Making of Nazi Race Law, Yale Law School Professor James Q. Whitman makes a credible case for his assertion that, by the 1930s, “America was the obvious preeminent example of a ‘race state,’” even if he falls short of proving the thesis implicit in his book’s title that the United States actually served as the model for Nazi tyranny.

By “race state,” Whitman does not merely mean that racial groups suffered discrimination as Jews did in early 20^th-century America. He means a nation that systematically divides its people into different classes of citizenship along racial, ethnic, or religious lines. For the United States as a whole and Southern states in particular, Whitman argues, an inferior sort of citizenship existed for blacks and Native Americans. Nazi Germany, of course, was targeting Jews, not blacks, for a second-class citizenship of a kind far worse than the discrimination that Jews had long suffered throughout Europe. Just how much America served as a model for that effort remains unclear.

The evidence Whitman presents to argue that America was a race state is a disturbing brew of laws and practices going far beyond the familiar accounts of Jim Crow segregation we neatly confine in our collective memory to the pre-Civil Rights Act American South. Critical to America as a race state, according to Whitman, were racial restrictions on immigration, citizenship, and marriage. These, coupled with de facto and de jure segregation and eugenics legislation at the state level, supposedly provided Hitler with his model for the infamous Nuremburg Laws.

Beginning with the Chinese Exclusion Act of 1882 and culminating in the Immigration Act of 1924 limiting entry visas based on national origin, the United States imposed racial or ethnic restrictions on immigration. Whitman depicts these laws as making America “the global leader in racial immigration law,” but he provides no comparative historical context. During the interwar period, for instance, the newly formed ethnic states of Central and Eastern Europe that replaced the multi-ethnic Austria-Hungarian, Ottoman, and Russian Empires excluded ethnically diverse residents in a far more draconian fashion than did the United States. Conditions became so dire that the League of Nations authorized Nansen Passports for displaced citizens. Holders included Marc Chagall, Aristotle Onassis, and Igor Stravinsky.

Post-World War I European horrors do not absolve America of its guilt, but they do mean that America hardly stands out as a global leader in racial immigration law. From time immemorial, states have imposed race-based limits on immigration, accepting their own types and barring others. Hitler didn’t need America as a model, other than as proof that a supposedly progressive democracy could also act in such a manner. The Harding Administration’s America First policies and the crude nativism of Harding’s Vice President and successor, Calvin Coolidge, simply added the United States to the litany of nations restricting immigration in the postwar collapse of comity.

Legal limits on citizenship for some residents, rather than immigration, provide Whitman with better evidence of American racism. At the time of Hitler’s rise, America classified Native Americas, Puerto Ricans, and Filipinos as non-citizen nationals—but this applied to Native Americans living on reservations and Puerto Ricans and Filipinos living in their homelands, which were American dependencies. African Americans were systematically denied the right to vote in Southern states. These laws and practices created second-class citizenship based on race or ethnicity. For Puerto Ricans and Filipinos, however, the situation was similar to the second-class citizenship of the native people living under European colonial rule throughout Africa, Asia, or the Pacific.

As Whitman notes, Hitler at first sought to encourage the emigration of Jews by stripping them of rights and treating them as second-class; the “final solution” extermination policy came later. America did not systematically encourage emigration by either African Americans or Native Americans. The parallel with America rested in Hitler trying to subjugate an established domestic community with theoretical and to some extent real legal rights, but differences persisted. As a group and individually, German Jews had greater economic power than African Americans or Native Americans, and the latter’s legal rights were problematic in much of the country compared to those of German Jews. For Hitler, Whitman states, segregating Jews was not a viable option; all-but-forced emigration, followed by genocide, was. In America, as in South Africa, segregation or apartheid remained the favored means. U.S. policies could offer analogies that, as Whitman shows, Nazi officials eagerly collected and used but, as he concedes, not a template or model. The Ottoman Empire could have provided a template for treating religious minorities as second-class citizens, and its successor state, Turkey, could have provided a model for ethnic extermination. For understandable reasons, American parallels proved more appealing to Nazi officials and propagandists than Turkish ones.

The Nazis hit pay dirt with American state anti-miscegenation laws. Having dozens to choose from, they could pour over all manner of limits on whites marrying non-whites, as that term was varyingly defined, with prison time for violators plus annulment of the marriage and possible termination of parental rights. “Draconian penalties of this kind represented a sort of law that only the United States had to offer,” Whitman writes in a welcome bit of comparative analysis. “The only other even partially comparable example that the Nazi literature highlighted in the early 1930s was found in South Africa, which penalized extramarital sex between the races, but not marriage.” Some American states did that, too. And the American laws remained on the books more than two decades after the Allied armies swept the German ones into history’s dustbin. Of course, unlike the German laws, the American ones did not apply to marriages between Jews and non-Jews because they invariably categorized Jews of European ancestry as white.

Whitman touches only lightly on eugenics, the then-widespread urge to channel human reproduction along lines of supposed hereditary fitness. For a generation or more, the rediscovery of Mendelian genetics in 1900 gave wing to the notion that it was as simple to breed superior humans as thoroughbred horses. Except for the purported support that it gave to immigration restrictions and anti-miscegenation laws, eugenics does not feature prominently in the creation of the American race state in Whitman’s presentation. The nation’s worst eugenic excesses involved compulsory state sterilization laws, which typically targeted mentally ill or developmentally disabled citizens regardless of race. Most victims were white. Whitman recognizes that the mere fact that Germany adopted similar laws and then turned them on Jews and gypsies does not necessarily support his thesis:

Here, a second recent book picks up the thread.

In Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck, lawyer and journalist Adam Cohen, a former president of the Harvard Law Review, offers a compelling, personality-driven history of American eugenics centering on one critical legal case. America’s role in what Whitman depicted as an international movement takes center stage in Cohen’s book, which includes some discussion of the American contribution to Nazi eugenics.

As Cohen notes, eugenics was born in Britain but received its fullest legal expression (at least so far) in the United States during the first four decades of the 20^th century. His story centers on the adoption of Virginia’s 1924 eugenic sterilization law and the subsequent litigation upholding its constitutionality in the 1927 Supreme Court decision, Buck v. Bell. At the time in the United States, eugenic sterilization laws of the type enacted in Virginia enjoyed widespread (albeit not universal) support from conservatives and progressives alike, Republicans and Democrats, scientists and physicians, Christians and agnostics.

As a modern scientific concept, the idea of positive eugenics, which involves encouraging the “best” humans to mate and reproduce, was revived and given a measure of credibility during the late 19^th century by the English polymath Francis Galton. He saw it as a logical consequence of Darwinian survival-of-the-fittest thinking applied to human society, or “Social Darwinism” as it was dubbed by its critics. Eugenics did not immediately gain wide support because most late-Victorian naturalists, including Charles Darwin but not Galton, thought that living things, including people, could pass on characteristics acquired during their lifetime such that neither favored nor disfavored traits were necessarily fixed. Further, virtually all pre-20^th century scientists (including Galton) subscribed to a blending view of heredity under which children inherited a blend of their parents’ or ancestors’ traits. In this view, the challenge laid not so much in pulling inferior families up to the norm (because that should happen naturally through cross-breeding) but rather in keeping superior family from falling back toward it. Thus Galton stressed positive eugenics.

Early in the 20^th century, mainstream scientific opinion was won over to eugenics following the rise of Mendelian genetics. They held that parental and other ancestral traits reappear in children and more remote descendants without blending. Early geneticists saw this process applying in a simplistic, one-to-one fashion to many severely disabling traits, including the sort of developmental disabilities supposedly at issue in Buck. This view spurred interest in negative eugenics, which involves discouraging or stopping persons with disfavored traits from procreating. Eugenicists reasoned that if severely disabling mental conditions were Mendelian characteristics, then for the sake of society and themselves, carriers should not breed. Of course, the triumph of eugenics built on a history of increased public acceptance of a competitive struggle for existence as the driving force for social and economic progress, as reflected in the writing of such enormously influential intellectuals as Herbert Spencer and John Fiske. It only took a slight twist of reasoning to transpose accepting the natural selection of the fit into encouraging the intentional elimination of the unfit.

By 1920, in an era when genetics was institutionalized at both state land-grant and private research universities, every American geneticist either endorsed eugenics or did not publicly dissent. Many prominent psychologists, sociologists, and physicians approved of it. Their professional associations followed suit, most notably the American Genetics Association and many state medical societies. A large circle of distinguished professionals added their vigorous support—including renowned zoologist and Stanford University’s founding President David Starr Jordan, Harvard University biologists Edward East and William Castle, American Museum of Natural History President Henry Fairfield Osborn, birth control advocate Margaret Sanger, and inventor Alexander Graham Bell. A wide range of American political leaders, including Presidents Theodore Roosevelt, William Howard Taft, Woodrow Wilson, and Calvin Coolidge endorsed eugenic measures, and their appointees sat on the Supreme Court that heard Buck. Wealthy philanthropists and foundations vied to support eugenics research and lawmaking. Indeed, the Virginia eugenics sterilization law upheld in Buck was derived from a model statute drafted by the Eugenics Education Society with funding from both the Carnegie Institute and the widow of railroad magnate E. F. Harriman. Advocates supported by the Rockefeller and Russell Sage Foundations lobbied for enactment of eugenics legislation throughout the South. The passage of Virginia’s sterilization statute was therefore not the isolated act of a single racist state.

By focusing on that one state and its infamous statute, however, Cohen brings the whole movement to life and gives it a gritty, personal, and intensely human feel that succeeds in assigning individual blame and injury rather portraying it as the product of abstract social forces. Underscoring this approach, he tells the story in a series of two-chapter-long mini-biographies beginning and ending with ones featuring the passive female victim, Carrie Buck. In between these bookends come two chapters each on four main male protagonists: the law’s leading local proponent, the Superintendent of Virginia’s Colony for Epileptics and Feeble-minded Albert Priddy; national eugenics champion Harry Laughlin of the Carnegie Institution’s Eugenics Record Office; the law’s reluctant author and courtroom advocate Aubrey Strode; and Justice Oliver Wendell Holmes, who wrote the Supreme Court decision with transparent enthusiasm and rhetorical flourish. “Three generations of imbeciles are enough,” Holmes famously declared.

By 1927, the octogenarian Holmes had gained near-legendary status as a hero of American law largely on the basis of his majority and minority opinions in favor of upholding the constitutionality of Progressive Era social legislation. He did so, as Cohen documents, less out of support for such laws as out of his legal-realist conviction that whichever side prevails in the political contest of lawmaking should have its will carried out in practice. Of course, in writing for the Court in Buck, Holmes did not need to fall back on the principle of judicial deference to legislative decision-making. By temperament and philosophy, as Cohen also shows, Holmes supported eugenics. As early as 1873, he argued that the law “must tend in the long run to aid the survival of the fittest,” and two decades later he hailed a future when science would “take control of life, and condemn at once with instant execution what now is left for nature to destroy.” On this and other evidence Cohen writes, “Holmes, who had spent much of his life as a judicial spectator, leapt to life as an enthusiastic advocate for the eugenic cause.”

A cause-orientated reformer himself with service as an ACLU lawyer and aide to the current New York Mayor, Cohen strives to assign individual human agency—credit and fault—and show that people can make a difference. He makes a point of stating that “Holmes could have led the Supreme Court in a completely different direction.” The law, as Cohen documents, was riddled with flaws and the case corrupt from beginning to end. Despite Holmes’s assertions to the contrary, Carrie Buck neither qualified for sterilization under the statute nor had fair representation in court. People caused the injustice done to her and could have prevented it at several points. Holmes, Laughlin, and Priddy were hopeless advocates, Cohen suggests, but Strode knew better. He becomes the cautionary character in Cohen’s tale for those of us who fail to stand against evil.

I see American eugenics as more the result of newfangled scientific ideas combining with old-fashioned racist and classist impulses than of the acts of a few critical people. Nevertheless, I suspect that both Cohen and I would draw a similar basic lesson from the episode: One should cultivate a healthy skepticism of simplistic scientific solutions to social issues, especially when these solutions run counter to traditional moral values, and one should also err on the side of kindness in policymaking.

Unlike Whitman, Cohen does not focus on American laws and practices as models for Nazi Germany, but the parallels shine through nevertheless in his close study of Laughlin and Holmes. Publications by Laughlin’s Eugenics Record Office hailed Nazi eugenics programs and Laughlin both advised Nazi scientists about eugenic sterilization and received an honorary degree from the Nazi-dominated University of Heidelberg for his work on racial cleansing. The eugenics-inspired Immigration Act of 1924, for which Laughlin testified before Congress, helped to keep out Jews fleeing Nazi persecution. “The Jew is doubtless here to stay and the Nordics’ job is to keep more from coming in,” he wrote to eugenicist Madison Grant in 1932.

As it happened, Grant’s tome, The Passing of a Great Race, did influence Hitler, who was said to have written, “The book is my Bible.” And when Nazi officials were tried at Nuremberg for mass sterilization and other crimes against humanity, they cited Holmes’s words in Buck v. Bell in their defense: “It is better for everybody if society, instead of waiting until it has to execute degenerate offspring or leave them to starve because of feeble-mindedness, can prevent obviously inferior individuals from propagating their kind.” American law may not have served as the model for Nazi race and eugenics practices, but the Nazis used it to justify and defend them.

Human rights are more easily trampled than protected, which is all the more reason to act without reproach when dealing with our fellow men and women. Through their study of American race law and eugenics, Whitman and Cohen remind us that bad individual acts can have horrific human consequences, and also that what happens in one place need not stay in that place. Less portentous but not necessarily less interesting, they can also cast a hero like Oliver Wendell Holmes off his pedestal.