For five years after Adolf Hitler came to power, attorney Ernst Fraenkel did something almost unimaginable: He stood in German courtrooms defending anti-Nazi dissidents and trade unionists — and sometimes even won. Even more remarkable, Fraenkel was Jewish. The Nazis tolerated him only because he had served in the German army during World War I, a temporary shield he knew would not last. In 1938, after learning from a sympathetic official that he was on a Gestapo arrest list, he fled to the United States.

Three years later, Fraenkel published a book: The Dual State: A Contribution to the Theory of Dictatorship. Many assume that Nazi rule instantly swept aside all “normal” legal standards. Fraenkel showed otherwise. In the early years of the Third Reich, he wrote, Germany lived under two systems at once — a functioning legal order and a parallel, lawless realm of political power.

Lately, a number of legal scholars have been warning that the American legal system under Trump shows troubling similarities to the “dual state” Fraenkel described. They point to federal agents using lethal force against protesters, arrests and detentions of immigrants based on appearance or perceived foreignness, the exclusion of state and local law enforcement from federal investigations, and the use of the Justice Department to pursue Trump’s perceived enemies.

Trump’s massive air assault on Iran has brought more accusations that he has put himself above the law. Rep. Thomas Massie, a Kentucky Republican, called the strikes “acts of war unauthorized by Congress.”

America in 2026 is not Nazi Germany. But Fraenkel’s observations confront us with a question for our times: Can a democracy like ours drift toward a dual system of its own — one legal, one ruled by authoritarian prerogative — without fully realizing it?

A young German Jew, wounded in World War I, returns from fighting for the Kaiser, earns his law degree, becomes a rising figure in the anti-Nazi Social Democratic Party, defends trade unionists as counsel for a metalworkers union, continues representing dissidents after Hitler’s rise, and escapes with his life as the Nazis purge Jewish lawyers and Germany marches toward the Holocaust. It sounds like the outline of an epic film. But it was Ernst Fraenkel’s life.

It is striking that Fraenkel has not been recognized more widely for the hero he was. And it has taken his 1941 book on the legal structures of Nazi Germany — combined with Trump’s assaults on American democracy — for Fraenkel to receive the broader attention he deserves.

“When I first read about him, I thought it was astounding: Here was a Jewish Social Democratic lawyer representing political defendants effectively,” while at the same time anonymously writing anti-Hitler pamphlets, said Douglas G. Morris, a retired criminal defense lawyer for indigent clients and author of Legal Sabotage: Ernst Fraenkel in Hitler’s Germany.

After Hitler came to power, he quickly moved to purge the civil service of employees deemed disloyal or who were Jewish, including attorneys. But the Nazis granted exemptions for Jewish civil servants who had served in World War I — the Frontkämpferprivileg. Fraenkel hadn’t just served; he had been severely injured.

Even as the Nazis rounded up political opponents and sent them to early concentration camps like Dachau, pockets of resistance remained. As a Social Democrat and attorney, Fraenkel had contacts with dissidents and took many on as clients.

He understood something essential about the new regime: To protect his clients — and himself — he had to avoid provoking the Nazis or drawing the attention of the Gestapo. So he presented cases as if the normal legal system still existed — and in some ways it did. This required discipline, given his opposition to the regime. But the strategy worked. If he couldn’t win an acquittal, he could sometimes secure a light prison sentence.

At the same time, Fraenkel was secretly writing pamphlets for the anti-Nazi resistance. He wrote five in total, Morris told me in an interview, including “The Point of Illegal Work,” which argued that Germans should resist the regime through various means. He was also quietly drafting the manuscript that became The Dual State.

Fraenkel knew about the torture and punishments used in the camps. But as brutal as the Nazis were toward their enemies, the regime initially did not view attorneys — Jewish or otherwise — as a significant threat, according to Morris. That blind spot allowed Fraenkel not only to write anti-Nazi pamphlets but also to serve as a conduit for dissidents to exchange information.

From his courtroom experience, Fraenkel observed how the Nazis handled the pre-1933 legal system. They did not abolish it outright. Instead, they created a parallel system to dish out especially harsh punishments to those deemed in violation of the regime’s political edicts. Fraenkel called the pre-Nazi system the “normative state,” and the Nazi-controlled system the “prerogative state.” Thus, a dual state. The two systems were never equal, Morris notes: “The prerogative state — exercising its arbitrary power through intimidation and violence — always maintained control.”

On Sept. 20, 1938, Fraenkel received a warning that he was about to be arrested. He fled Germany, traveling to London, then New York, and finally Chicago. A French diplomat had smuggled his manuscript out of Germany. After arriving in the U.S., Fraenkel earned a law degree from the University of Chicago and published The Dual State. He returned to Germany in 1951, became a professor at the Freie Universität Berlin, and died in 1975.

A growing number of legal analysts argue that the United States is developing its own version of a dual state — one that persecutes, demonizes or sidelines those who oppose MAGA ideology or threaten the fantasies of white-superiority advocates.

On his first day in office, Trump issued a mass pardon to some 1,500 insurrectionists who had stormed the Capitol on Jan. 6, 2021 to try to keep Trump in power despite his election loss. During the following months Trump granted clemency to 100 more convicted criminals, who included prominent business figures, high-profile MAGA supporters, and allies connected to Trump’s political and fundraising networks.

Masked and dressed for combat, ICE and CBP now act like the muscle for a parallel legal state — imprisoning foreigners whose only offense is entering the country illegally, dragging people from their homes in front of their children, and assaulting citizens who try to shield immigrants from unjustified arrest, killing two so far. The administration’s arbitrary decree that immigration agents no longer need judge-signed warrants to force their way into homes is another expression of what Fraenkel called the prerogative state.

Trump’s perceived and real political foes are being swept into a legal system built for his benefit, targeted by a Justice Department that now functions as an instrument of presidential power. In Trump’s America, Democrats, non-MAGA members of the press, and anyone who disagrees with him are denounced as mortal threats to the nation. Administration officials deemed insufficiently loyal are purged from their jobs.

This parallel system is colliding with legal traditions dating to the country’s founding, and courts have so far slowed the slide into full autocracy with rulings blocking Trump’s most aggressive edicts. Trump responds by attacking the judges who rule against him.

The Supreme Court dealt a significant blow to Trump’s parallel legal system when it struck down his tariffs. But this is the same court that nearly two years ago granted presidents broad immunity from criminal prosecution for official acts.

Fraenkel showed how a democracy can lose its bearings long before it loses its laws. As the United States nears its 250th year, the question is no longer whether a dual state can take root here. It is whether we will recognize it in time.

 

The post During WWII, a heroic Jewish lawyer warned against the dangers of a dual state — is it coming true in Trump’s America? appeared first on The Forward.

When news arrived that Ronnie Eldridge had passed away at the age of 95, I thought back to the mid-1980’s when I made a number of visits to the apartment on Central Park West that she shared with the legendary newspaper columnist Jimmy Breslin and their blended family of six kids. At the time I was doing stories for NPR about Breslin and his passionated denunciation of municipal authorities for their neglect of city’s homeless. Sometimes I’d record Breslin at home.

I couldn’t help noticing that almost every time I was in that apartment, Eldridge was on the phone with an autistic Jewish man named Ralph. I tend to notice things like that because my brother Michael, olav ha sholom, was autistic.

According to Daniel Eldridge, the eldest of the three Eldridge “kids,” his mother met Ralph at a Robert F. Kennedy presidential campaign event in 1968. Apparently, a campaign volunteer who was manning the door was giving Ralph a hard time.

Ronnie Eldridge intervened and declared that Ralph, who she had never met before, was her friend and he was to be allowed in. Daniel Eldridge told me his mother spoke with Ralph nearly every day after that.

Because my conversation with Daniel Eldridge was conducted on speakerphone, Eldridge’s granddaughter, Sophie Silberman, piped up.

“She looked after everybody with kindness and devotion,” Silberman said. “She knew that she was significant to Ralph and it didn’t take much to keep that part of his life alive and it meant the world to Ralph.”

Big shoes to fill

That kindness and devotion echoed in several recollections of Eldridge’s public life today.

Ruth Messinger, a former city council member who went on to lead the American Jewish World Service, told me that Eldridge “was very savvy.”

“She was a no-nonsense person,” Messinger said. “If there was an issue, if there was a problem, she would take it on. She was a seriously progressive presence for many, many years. She pursued the issues and stood up for justice.”

“She was just an institution all by herself,” said her successor in the New York City Council, Gale Brewer.

Eldridge represented an Upper West Side district in the Council for 12 years before being term-limited out of office. “Her shoes were very big shoes to fill,” Brewer said.

Eldridge was one of the sponsors of a 1992 law that required cameras be placed in facilities that house automated teller machines. She was motivated to win passage, having been held up using an ATM in her neighborhood.

Brewer is one of many public officials and activists who are remembering Eldridge’s advocacy on behalf of the most vulnerable members of society, including the LGBTQ community and women who have been abused by their spouses or boyfriends. She remembers Eldridge visiting incarcerated women who were doing time for crimes linked to their experience as battered women.

“She put that issue on the map,” Brewer told me.

The conscience of the Lindsay administration

Eldridge was one of the anti-war activists in the 1960’s who made mountains move on the national level. During the war in Vietnam she helped found the “Dump Johnson” movement, which in turn sparked President Lyndon Johnson’s decision to forego re-election in 1968. That prompted Robert F. Kennedy to enter the race. Eldridge was keen on RFK. She was a young mother in 1964 when she volunteered his campaign for the U.S. Senate.

During the ’68 presidential campaign, RFK said of Eldridge, “Behind that sweet, motherly face, Ronnie Eldridge has one of the toughest political minds in the city, if not the country.” She used the quote on a campaign poster for her unsuccessful bid to become Manhattan Borough President in 1977.

Eldridge’s activism also paid dividends on the local level. She served as the coordinator of Democrats for Lindsay and helped the Republican mayor win re-election in 1969 on the Liberal Party line. She was a political strategist for Lindsay and was known as the conscience of the Lindsay administration.

Around that time, she was part of a group that included the singer Harry Belafonte challenging the license of television station WPIX. The challenge dragged on for nine years but in 1978 an out of court settlement put about $10 million into the entity that challenged the license. I learned about all this when I asked Eldridge how she came to possess that very valuable Central Park West apartment.

A tabloid life

A number of Eldridge’s close friends have remarked that being married to Jimmy Breslin may’ve come with some perks, it must’ve been a challenge as well. For those of us who read Breslin religiously in the New York Daily News and New York Newsday, some of the gruff newspaper columnist’s more entertaining columns chronicled the foibles of the interfaith family’s Upper West Side life together.

This shtick inspired a pilot for a 1989 CBS sitcom about a NYC newspaper columnist and a mayoral aide. American Nuclear was co-written by Breslin but the network ultimately decided not to pick up the series.

In a 2004 for a radio documentary interview about her husband, I asked Ronnie Eldridge about having her domestic life portrayed in a tabloid

“The first time it happened everybody was hysterical,” she said. “I had a daughter in Paris. She called from Paris and was in tears. A daughter at college, she was also in tears. And my son in California said, ‘What’s going on?’ And then Jimmy’s family said, ‘Oh, just don’t pay any attention to it.’”

“When I was in the city council, I would just pretend that I didn’t read the paper. He would write articles. condemning and attacking colleagues of mine. I’d have to go into the city council and, see somebody that he’d just called unmentionable names. So, I just learned to leave it alone.”

A memorial service will be held for Ronnie Eldridge on Wednesday, March 11 at 4:30 p.m. at the New York Society for Ethical Culture, 2 West 64^th Street in Manhattan.

The post Behind Ronnie Eldridge’s sweet, motherly face, one of the toughest political minds in NYC appeared first on The Forward.

A newly released research paper is raising fresh legal questions about the wave of campus and institutional campaigns calling for divestment from Israel, arguing that such efforts may violate anti-discrimination laws in the United States.

The report, published by Northwestern Law School professor Max M. Schanzenbach and Harvard Law School professor Robert H. Sitkoff, examines the growing push by activists affiliated with the global boycott, divestment, and sanctions movement (BDS), which urges governments, universities, and companies to cut economic ties with Israel in the first step to the Jewish state’s eradication.

According to the paper, divestment campaigns that single out Israeli institutions or businesses could potentially run afoul of state and federal laws that prohibit discrimination based on national origin.

BDS advocates argue that their campaign is a form of political protest designed to pressure Israel to change its policies. The movement, formally launched by anti-Israel activists in the mid-2000s, has called for boycotts of Israeli goods, divestment from companies linked to Israel, and government sanctions.

But the new analysis contends that when governments or public institutions adopt such policies, the underlying legality could be questionable. The authors argue that targeting Israel specifically for economic exclusion could conflict with existing anti-discrimination statutes or state laws aimed at preventing boycotts of Israel.

More than half of US states have enacted legislation limiting participation in BDS-related boycotts or requiring government contractors to certify that they are not boycotting Israel. In some states, including California, laws restrict the awarding of public contracts or funding to organizations that participate in boycotts targeting the country.

The paper also challenges the argument frequently made by BDS supporters that such boycotts are protected under the First Amendment to the US Constitution. While individuals may advocate for boycotts as political speech, the authors argue that institutional policies, particularly those adopted by government bodies or public universities, could still violate anti-discrimination or procurement laws depending on how they are implemented.

The paper raises potential anti-discrimination concerns surrounding divestment campaigns that target Israeli companies. The authors argue that some boycott or divestment proposals could expose universities or public institutions to legal vulnerability if investment decisions are based primarily on a company’s Israeli national origin rather than specific conduct. Under certain US civil rights laws and state policies governing public institutions, actions that single out individuals or entities because of national origin may trigger discrimination claims. The paper suggests that if divestment policies are framed broadly against Israeli businesses as a category, rather than tied to particular corporate activities, institutions implementing them could face legal challenges alleging unequal treatment.

The analysis argues that modern divestment campaigns targeting Israel differ significantly from the anti-apartheid divestment movement against South Africa. The paper contends that while many universities in the 1980s adopted selective restrictions on companies directly tied to South Africa’s apartheid system, often aligned with international sanctions and corporate conduct codes, the current iteration of the BDS campaign against Israel frequently calls for broader exclusions based on a company’s ties to Israel itself, potentially creating legal risks such as national-origin discrimination issues.

Divestment campaigns have become especially prominent in recent years on US college campuses, where student groups have pushed universities to withdraw endowment investments from companies tied to Israel or its military. Critics, however, argue the campaigns unfairly single out the world’s only Jewish state and risk creating discriminatory policies against Israeli businesses or academics.

In the two years following the Hamas-led Oct. 7, 2023, massacre of 1,200 people and kidnapping of 251 hostages throughout southern Israel, campus activists have intensified efforts to implement divestment policies on university campuses. While universities have mostly resisted these efforts, federal lawmakers have advanced legislation to truncate divestment initiatives before they gain traction. For instance, in 2024, Congress introduced “The Protect Economic Freedom Act,” which would render universities that participate in the BDS movement against Israel ineligible for federal funding under Title IV of the Higher Education Act, prohibiting them from receiving federal student aid. The bill would also mandate that colleges and universities submit evidence that they are not participating in commercial boycotts against the Jewish state.