Some things are hard to deny—the Holocaust, evolution, global warming, the failure of U.S. policy in Iraq—but there are always ideologues and lunatics who will deny them anyway. It’s difficult to know what to do about that. You want to believe that reason and evidence will prevail, but the human mind can withstand the offense of such forces with astonishing resilience.

Cartoon by M.e. Cohen

Germany has the idea that a criminal law might do the trick, and so is campaigning to get the European Union to impose prison sentences of up to three years on anyone who denies that the Nazis murdered millions of Jews during World War II. Critics offer numerous reasons not to enact the law.

For starters, there’s freedom of expression as a foundational and distinguishing principle of free societies. Rarely can this aspirational norm help resolve difficult questions, however, since even the most liberal of free societies is unlikely to permit absolute freedom of expression, for example when such expression presents an imminent risk of violence.

More pragmatic critics might focus on the risk that criminal prosecution for Holocaust denial will backfire, and instead of extinguishing anti-Semitism, will foment it. The deniers will be confirmed in their belief that Jews and forces beholden to them are powerful in the extreme, and that the deniers are victims, heroes, and martyrs to the cause of an unpopular truth. They will be forced underground and it will become more difficult for law enforcement to monitor them for truly violent conspiratorial activity. They will be made more credible and important because the law conveys that Holocaust denial is a genuinely dangerous and very possibly convincing position that cannot be disposed of in the context of an open debate.

Supporters of the law might counter that Holocaust denial is genuinely dangerous—and that the Holocaust was enabled in the first place by the failure to take anti-Semitism seriously when the early signs appeared. Maybe so—we can’t know the future or what alternative realities might have been. It’s hard enough to get a grip on the present and the actual past. But even if the law’s supporters are correct, it does not necessarily follow that criminal prohibition is the best approach.

I’m more like-minded to the pragmatic critics than the principled ones or the supporters of the law, but what strikes me most about the law is that it represents a wholly different type of denial. That the Holocaust happened is not an uncertainty—at least not to the reasonable-minded. But Germans struggle individually and as a country with something far less certain: how to manage the heinous and guilty legacy that the previous generation left them. It’s easy to take a strong stand against Holocaust denial—it’s like saying that racism is bad or that life is precious—but for Germany to pour the energy of its EU presidency into shoring up its position that the Holocaust did in fact happen is an evasion of the much more complex and perhaps ultimately unanswerable questions that accompany the history inflicted upon Germans by their dying generation.

If you keep up with the Holocaust (it happened just the once, but the histories, museums, memorials, literary and artistic renditions, and psychological, theological, and ethical reflections keep coming), then you might have observed a change. As the survivors die off, and their children and grandchildren replace them as the producers of the most current representations, it’s no longer principally the Holocaust—that primary and massive historical event or constellation of events—that constitutes the object of thought. Writers, poets, artists, and the rest of us are far too narcissistic for that. What we (the children and grandchildren) write about is the consequences of the Holocaust for succeeding generations. Our stories are about the trips back to Germany and Poland, our visits to concentration camps and ancestral villages, our love affairs, friendships, and encounters with Germans whose grandparents or great-uncles might have murdered our own.

One of the currents that runs through so many of these pieces is a deep ambivalence about blame. It seems manifestly unfair to hold our contemporaries responsible for the crimes of their progenitors, but that does not seem to ameliorate the mistrust that can be read in the accounts of those who go back and forge relationships and provoke encounters in the old country. And even for those who might never undertake such a pilgrimage, plenty of Jews—myself among them—won’t buy a German car or a Krupps coffeemaker. It’s completely irrational, I realize, or at least it will be in a few more years when truly all of the perpetrators are dead and cannot possibly profit from these purchases. But the antagonism stubbornly persists.

That’s a phenomenon on the Jewish side. On the German side, insofar as I have witnessed it, a mirror image forms. Among Germans, national self-flagellation uncomfortably coexists with the resentment of a nation that experiences itself as a victim. This tension can be seen in the recent German debate about Holocaust restitution (a subject on which I’ve done research). Over the years, political forces within Germany mostly associated with the left have supported reparations payments to Israel and pensions for Holocaust survivors living around the globe. When, in the late 1990’s, the world started to read news articles about efforts to recover stolen art and unpaid life insurance proceeds and to obtain compensation for former slaves of the Third Reich’s industrial sector, many Germans, more typically associated with the right, started to feel that they had paid enough. They had apologized sufficiently, and they (the Germans who would bear the costs of more restitution and further confessions) were not the guilty ones, after all, so why were they being sued, humiliated, and held accountable? When will it end? When will they have paid the debt for a crime that happened before they were even born? While these positions seem to travel to some extent with left or right political tendencies, I suspect that most individual Germans have experienced the full panoply of emotions at one time or another.

My own mistrust is fed by this kind of resentment; it feels to me on the very precarious verge of anti-Semitism. But it’s also obvious that these people are suffering. The inheritors of the Holocaust, including Germans as well as Jews, have been left an unmanageable legacy. It really might be that it’s just impossible to know how to be a German right now. Obsessing about the Holocaust deniers is one way to go, but in the end that is a displacement of German uncertainty and guilt. Whatever the law’s practical effects on anti-Semitism in Europe, it will distract from the crisis of identity that today’s Germans face.