Excerpted From: Felice Batlan, The Displaced Persons Act of 1948 and Home-grown Antisemitism, 27 Lewis & Clark Law Review 1057 (2024) (399 Footnotes) (Full Document)

felicebatlanThe title of this symposium “Law vs. Antisemitism,” implies that law and antisemitism are dichotomies on opposite sides of the coin, that law protects Jews from antisemitism, functioning as a sword and a shield. This narrative fits well within a long Jewish history of believing in law and how law can be used to enact social change. Law also plays a significant role in the supposed contrast between the old world and the new world in the Jewish immigrant experience where the new world is a place of law and the old world lawless. Perhaps it is the continual belief and hope in the protection that law offers Jews that instances where this is not the case have tended to be deemphasized or ignored in legal scholarship as not fitting into this larger narrative.

In the post-World War II period, historians have written about how Jews finally became white. That is how social constructions of race shifted in such a way that Jews were not seen or understood to be a separate race but simply an example of hyphenated Americans who were assimilated into American life. In such narratives, post-war antisemitism largely functions as an aberration of the far right. Even the most famed historian of antisemitism in the United States writes that the decline of antisemitism after the war was “so swift that careful observers were at a loss to explain the changes .... [A]ntisemitism in America was downgraded from a problem to an irritant.”

This Article interrogates these assumptions by examining how widespread antisemitism was embedded and baked into the United States' first formal refugee act. Specifically, this Article examines the 1948 Displaced Persons Act which provided for the ability of certain European refugees to immigrate to the United States following World War II. The 1948 Act discriminated against Jewish survivors of the Holocaust and favored those refugees viewed as most Aryan. Thus, Nazi racial laws and ideology were imprinted upon U.S. law. Moreover, in debates over passage of such a law, a vast amount of overt antisemitism emerged, generated by politicians and ordinary citizens, which went well beyond the question of the admission of refugees to the United States. By examining the complex and transnational events leading up to the 1948 Displaced Persons Act, and drawing upon underutilized archival material, this Article helps to uncover and explain antisemitism in the immediate post-war period. This analysis has substantial implications for how we think about the history of antisemitism and its relationship to law in the United States.

[. . .]

That many Jewish survivors were ultimately successful immigrants does not negate the fact that the 1948 Act was seeped in antisemitism and that this antisemitism was formally enacted into law. Crucially, there has never been a full reckoning with this fact. Its invisibility in much of legal scholarship is difficult to understand. Perhaps it is much more comforting to focus on areas in which lawyers use law to seek some form of justice for Jewish people, such as the Nuremberg trials, reparations for Holocaust survivors, or the prosecution of former Nazis. Such topics coincide with our understanding that law can be used as a shield and a sword for the protection of Jews.

This Article's analysis of the debates surrounding the 1948 Act also uncomfortably points to the question of when Jews finally became white and the complex ways in which antisemites can use kernels of truth to create immensely distorted arguments and reality while claiming objectivity and patriotism. Finally, the 1948 Act and the events surrounding it can be understood as directly feeding the anticommunist witch hunts of the 1950s, the rise of Holocaust deniers, and later white supremacist groups. The groundwork had been stunningly laid. As seen throughout this Article, antisemitism has remarkable staying power and the ability to shape-shift to fit new circumstances.

Felice Batlan, Professor of Law, IIT Chicago-Kent College of Law.