Dictatorship and The German Constitution, 1933-1937 - Karl Loewenstein

Dictatorship and the German Constitution: 1933-1937 Author(s): Karl Loewenstein Source: The University of Chicago Law Review,
Vol. 4, No. 4 (Jun., 1937), pp. 537-574 Published by: The University of Chicago Law Review Stable URL: http://www.jstor.org/stable/1596654 Accessed: 01/04/2010 00:27
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DICTATORSHIP AND THE GERMAN CONSTITUTION: 1933-1937

KARL LOEWENSTEIN*
on JanuFTER NationalSocialism had seizedpowerin Germany

of the constitutionallaw of the ary 30, I933, the transformation GermanReich was accomplishedat an exceedingly rapid rate. During the first two years of National Socialist rule there was an enormous output of statutes of basic importance. This ratherhectic processof constitutional reconstructionevidently had reached a climax when, on August i, I934, Adolf Hitler united the functions of the Reich President in his person, because the plenitude of aband of the Reich-Chancellor solute powerbestowedon the SupremeLeaderof the Reich (Reichsfiihrer) was incapableof being furtherincreased. Since then the pace in rebuilding the constitutionalstructurehas ostensibly slackenedand it seems safe to state that the outlines of constitutionallaw as they appear today embody the governmentalform of the Third Reich in its final shape. Among the vast mass of statutes passed during the first four years of National Socialist rule some are consideredas of fundamentalnature and are spoken of as the basic or organic acts of the Third Reich (Grundgesetz). This officialdesignation,however,does not imply that these acts became integralparts of the fundamentalcharter (Verfassungim formellen Sinn). Although it has been repeatedly hinted that a completely new constitutional document will be drawn up which would supersede the
Weimar Constitution of August
ii,
1918, the plan, if ever seriously con-
templated, has not as yet materialized. Should a new constitutional charterbe adopted, it would scarcely differmuch from the constitutional set-up reflectedtoday in the so-called basic acts, ordinarystatutes and to a large extent also, in governmentalhabits or conventions. On the other hand it is open to doubt whethersuch a formal constitutionalinstrument will ever be enacted, and this for a very cogent reason. The juridicalfixing of a legal order seems irreconcilablewith the fundamental principle of a dictatorial system of using new devices to adjust the governmental structure to changing political circumstances. This aim would be frustrated if the virtually boundless jurisdictionof the SupremeLeader were
* VisitingProfessorof Political Science,AmherstCollege;formerly,Lecturerin ConstitutionalLaw at the Universityof Munichand memberof the Munichbar.
537
538
THE UNIVERSITYOF CHICAGO LAW REVIEW
subjectedto constitutionallimitationsinevitablein a written document. Any written constitution, by the very fact of the juridicalformulation, creates subjective rights either of the citizens as a whole or of governmental agencies and thus involves a limitation on sovereignty,which in the dictatorialideology is fundamentallyabsolute and supreme. In view of these circumstances it may not be prematureto attempt to outlinesummarilythe presentconstitutionalstructureof the ThirdReich. The survey is confinedto the aspects of constitutionallaw properas reflected by legislation. It should,however,be borne in mind that even the most scrupulouspresentationof the lex scriptanever conveys a faithful picture of actual constitutional life unless supplementedby a realistic interpretationand a sociologicalappraisalof how the statutes operatein practice. No such ambitiousschemecan be undertakenin a reportwhich sets out to deal exclusively with constitutionallaw as revealed by the statute book.' A word may perhapsbe added here on the condition of legal science underNational Socialism. While constitutionaljurisprudence underthe and under the Weimar was second to none Empire particularly Republic in originality, legal acumen and awarenessof critical values, National Socialistlegal science has declined sharplyeven in purely technicalmatters. Bent upon the creation of fundamentallynew legal concepts, National Socialistconstitutionaljurisprudence takes pridein pretendingthat it has establisheda legal system whichis sui generisand beyond the reach of comparativestandards. Despite the interpretativeand exegetic skill that has been devotedto this end, the system has not shownitself susceptible to analysis even in its own terms. Moreover,National Socialistlegal literaturelacks the stimulatingelement attendant on the developmentof a new administrativetechniquesuch as corporativism whichhas vitalized Italian legal science to such an extent. In describingthe Germansystem of constitutional law-notable as it is in many respects-the foreignla-yer who feels himselffree from the mystical thraldomof emotionaladulation
IAlthoughto the author'sknowledgeno similarpurelylegal surveyof the constitutional situationin Germany has been presented in English,the articlemakesfew references to the vast foreignlegal literature of National Socialism.A few of the moreimportanttreatments of the subjectin Englishare: Ermath,The New Germany in the (1936);Marx,Government ThirdReich(1936);Schumann, The Nazi Dictatorship The Nazis Reform (1936); Lepawsky, the Reich,3o Am.Pol. Sci.Rev. 324ff. (1936);Wells,TheLiquidation of the German Lander, 30 Am. Pol. Sci. Rev. 350 (1936). For manycollateralpointsof interestand particularly for references see Loewenstein, Law in the ThirdReich,45 YaleL. J. 799 (1936). bibliographical A searching treatment of the subject,sympathetic to NationalSocialism, is foundin Bonnard, Le droitet l'ltat dansla doctrineNationale-Socialiste German doctrine is (I936). The official in Neissner-Kaisenberg, Staats-und Verwaltungsrecht presented im DrittenReich (1935).
THE GERMAN CONSTITUTION:1933-1937
539
thus derives little benefit from National Socialist jurisprudenceproper, which, by its very nature, is more apologetic than analytic. For obvious reasons the following discussion, although based exclusively on original Germansourcesboth in legislation and doctrine, deviates when necessary from the official German interpretation.
I. THE LEGAL FOUNDATIONS OF THE NEW ORDER
THE SEIZURE OF POWER
On January 30, I933, the President of the Reich, von Hindenburg,conferred upon the leader of the National Socialist GermanWorkersParty, Adolf Hitler, the task of forming a new cabinet. The transition of power from the cabinet of von Schleicherto the cabinet of Hitler was in accordance with the actual requirementsof the political situation and preserved the legal continuity. It conformedfurther to the practice of the so-called presidential cabinets lately known under the republic. This type of a plainly pervertedparliamentarygovernmentstressedmore the confidence in the President2than the need of a stable parliamentarybacking for the government.3 The transformation of parliamentary into presidential government had been possible only by shifting the legislative powers from the Reichstag underthe emergencypowersof Art. 48. Obviouslythis situation could not be continued forever. The political groupingof the electorate made it imperative to form a coalition government, (the government of the National Union)4 which was composed of the National Socialist Party and the German National People's Party. In addition, some non-political expert ministers were retained. The key positions, namely the office of the Reich-Chancellorand of the Minister of the Interior,were held by the leading membersof the National Socialist Party.5 The subsequent dissolution of the Reichstag followed the accepted rules of the parliamentarygame. The elections held on March 5, I933, resulted in the followingdistributionsof votes and seats. The National Socialist Party polled 43.9% of the total votes cast and obtained 288 or 44.5% of the totality of seats while the correspondingfigures for
2 Wiemar Constitution of August ii, 1919, Art. 55 (RGB. I, I383). RGB signifies the Ger-
man officiallaw bulletin, Reichsgesetzblatt.

3 Id. at Art. 54.
4 See Ordinance of the Reich President on the dissolution of the Reichstagof February I, I933 (RGB. I, 45). s The Ministerof War, Generalvon Blomberg,sympathizedwith the National Socialist of the GermanNationalists were Dr. Hugenberg,von Papen, and Party. Representatives of the nationalmilitaryorganizations. Seldte,the latter as representative
540
THE UNIVERSITY OF CHICAGO LAW REVIEW
the GermanNational People's Party were 8% of the votes and 52 seats.6 Thus the majority obtained by the coalition parties amountedto 52.5% of all seats and slightly more than the relative majority of all votes cast. In the light of the subsequentevents it should be stressed here that the elections from which the National Socialists derived the legal claim to revolutionizethe fundamentalorderof the state yielded only a very slender marginof majoritywhich as it is knownwas immenselyexploitedby the victoriousparties. Moreover,it should be borne in mind that from the viewpoint of the WeimarConstitutionthen still in force grave objections could be raised against the conduct of the elections themselves. The campaignwas no longer under the usual guaranteesof freedomof speech, associationand assembly which are indispensableto the free expressionof popularwill. While the flamesof the Reichstagfire were still smouldering, the governan the of ment, under pretext impendingcommunistrebellion,suspended of the Presidentseven of the fundamentalrights of the conby ordinance stitution: the right of personalliberty, freedomfrom arrest, freedomof freedomof assembly,of associationand of private property.7 expression, These restrictionsof the constitutionalguaranteestold heavily against the democraticallyminded parties not representedin the coalition, particularly the Social Democrats and the Catholic CenterParty. In addition the Court of Inquiry into Elections (Wahlpriifungs-Gericht),8 when
6 The followingis a
of the election: statisticalsummary

Name of Party Votes Cast
x7,277,85 7,181,633
3,I36,752
of Votes Percentage
43.9 I8.3 2. 5 .2 8.o
Seats Obtained
288
120
National Socialist ....................... Social Democrats.......................
BavarianPeople's Party*................ GermanPeople's Par t ................. ChristianSocial Party................... GermanState Party ................... GermanFarmers Party.................. FarmersUnion of Wiirttemberg.......... HannoverianParty ..................... Miscellaneous groups....................
German National People's Party.........
........................... Communists CatholicCenterParty...................
4,848,079 4,424, 05 oS ,073,552 432,312 383,969 343,232

II4,048
8I
73
52
2.7
I.I I.0
x9
2
o.9 0.3
0.2
4 5
2 1
83,893 47,743 5,o66
o. x o.o
o o
* The party of the Bavarian Catholicsaffiliatedwith the Catholic Center. t The party of big businessand heavy industry. $ The formerDemocrats,the only genuinelyliberalparty of the bourgeoisie.
See Potzsch-Heffter, Vom deutschen Staatsleben (vom 30. Januar bis 3I. Dezember, I933) 22 Jahrbuch des 6ffentlichen Rechts 83 (I935). 7 These rights are respectively in Arts. II4, 115, II7, XI8, I23, I24, I53 of the Weimar Constitution. See Ordinance of the Reich President zum Schutz des deutschen Volkes of February 2, 1933 (RGB. I, 35) and Ordinance of the Reich President gegen Verrat am deutschen Volk und gegen hochverriterische Umtriebe of February 28, 1933 (RGB. I, 85) 8 Weimar Constitution, Art. 3I.
54I
later called upon to test the validity of the elections was completely controlled by the governmentand was thus unwillingand incapable of stating authoritativelythe validity of the election procedure.9To summarize the election and its results, it is no exaggerationto say that the election which brought National Socialism into power fell considerablyshort of the standardsof freedomof publicopinionas guaranteedby the Constitution and it is beyond doubt that without the partisan manipulationby the government the National Socialists and their allies would not have obtained even a relative majority. The constitutionalbasis on which the reconstructionof Germany on National Socialist lines rests was created mainly by fraud and terrorization.
THE ENABLING ACT AND THE AMENDING POWER
The pivotal point of the constitutionalstructureof the Third Reich is

the act of March 24, I933, "on relief of nation and Reich," the famous
"Enabling Act" which is described as the first organic statute of the Third Reich.?0 The preamble of the act contains the explicit statement of legislation that the vote on the statute "compliedwith the requirements amending the Constitution." These words certify authentically that, in conformity with Article 76 of the constitution, a majority of two-thirds of all memberswere present and that at least two-thirds of those present had voted in favor of the bill." Beyond doubt the passing of the act through the amending process was indispensable because the Enabling Act, (? i) involved a process of supplementingthe existing constitutional charter with a new type of legislation, the so-called government decrees (Regierungsgesetze)and thus indirectly supersededArticles 68 to 77 of the constitution.12Moreover-and this is in fact the legal key which opened the door for the subsequent reconstructionof the constitutional by thegovernlaw-? 2, sentence i, reads as follows: "Thestatutesdecreed the reservation with that constitution the mentmay deviate they should from and of the FederalCouncil"(italics not affecttheinstitutionsof theReichstag added). In addition ? 2, sentence 2, provides: "The powers of the Reich President are to remain intact." This amazingly simple machinery
9 On the basis of his own observations the author entertains substantial doubts as to the correctness of the election procedure in March, I933.
o1 Gesetz zur Behebung der Not von Volk und Reich of March 24, I933 (RGB. I, I4I). - On the widely ramified and juridically very complex problems of the amending process under the Weimar Constitution, see Loewenstein, Erscheinungsformen der Verfassungsanderung (I93I). 12 This pattern of constitutional amendment was called "constitutional amendment by way of supplement" (Verfassungserganzung); see id., at I I4 f.
542
recommended itself, by contrast to the elaborate cog-wheel system of democratic checks and balances, to people weary of parliamentary complications. By a few printed lines in the statute book the government not only monopolized the regular legislative function but also seized the amending power which the Weimar constitution had reserved to qualified majorities of both houses of the legislature acting together with, under certain conditions, the electorate. The only restriction on the dictatorial exercise of the amending power imposed on the government consisted in the nominal preservation of the "institutional guarantees"13of the Reichstag and Federal Council as such and the maintenance of the presidential powers. The latter, however, were implicitly curbed by the reservation in the act14 which abrogated his rights of participating in the legislative process. Be it noted that the regular type of legislation, that of statutes passed by the Reichstag, was not legally precluded. Subsequently in isolated instances, the Reichstag was convened to pass on acts introduced by the government if their importance from the viewpoint of interior or foreign policy rendered such a formal procedure desirable. On the whole, however, legislation by government decree has become the rule and normal legislation the rare exception.5S Since the National Socialist "movement" had officially proclaimed after the abortive putsch of I923 that power would be sought and gained only by "legal" methods, the juridical doctrine of the Third Reich incessantly stresses the fact that the seizure and exercise of power were wholly
3 Priorto the Nazi revolutionthe distinction betweenguarantee of constitutional rights and "institutional guarantees" by whichan institutionof the state wasprotected by the constitution only in so far as its bareexistencehad to be preserved was muchdebatedby constitutionaltheorists. In retrospectthis discussionindicatesthe progressive dilutionof the bill of rightsduringthe last years of the Republicunderthe auspicesof the versatileCarl Schmittwho servedthe government of the Republicnot less eagerlythan the ThirdReich. See on the problemof the institutionalguarantee,Schmitt, Verfassungslehre I76 (1928); und institutionelle Garantiein der Reichsverfassung, RechtsSchmitt, Freiheitsrechte wissenschaftliche Beitragezum 25 jihrigen Bestehender Handelshochschule Berlin, 338fif. (1931), Loewenstein, op. cit. supra note iI, at 288ff.; Menzel,Das Ende der institutionellen i8 Archivdes 6offentlichen Rechts(N.F.) 33 (I936). Garantie, 14"Arts. Actof March24 by thegovernment." Enabling 68-77do not applyto lawsdecreed of the Reichstag,FederalCouncil,Reich I933 ? 3. These articles regulatethe cooperation President andpeoplein thelegislative andin theamending process. I5Not even all "organic" statuteshave been submittedto the Reichstag.Thus far only the followingacts have been passedby the parliament: EnablingAct of March24, I933;
Reconstruction Act (Gesetz zum Neuaufbau des Reichs of March 30, I934) (RGB. I, 75);
the threeso-called"Nuremberg laws"(Reichsflaggengesetz; Gesetzzum Reichsburgergesetz,

Schutz des deutschen Bluts und der deutschen Ehre) of September i5, I935 (RGB. I, II45, Act of January, the Enabling zurVerlangerung 1146) andfinallythe act renewing I937, Gesetz derNot von VolkundReichof January zurBehebung des Gesetzes 30, I937 (RGB.I, i05).
543
conformableto the Weimar Constitution, then still in force. It is true that a defacto situation has to be accepted as existing henceforwardas
being de jure because a successful revolution creates new law.'6 Thus an
intrinsically illegal act is capable of giving birth to a new legal order. Nevertheless, the insistence of the National Socialist doctrine on the "legality" of the seizure of power makes it necessary to investigate this point more closely than it has been possible for legal students to do in the Third Reich. It is true that an indirectamendmentof the constitution,by an amending statute alone, was permissiblewithout incorporatingsimultaneously or later the alteration intended by the statute in the text of the constitution. This was not explicitly forbidden under the condition that the statute at variance with the text of the constitution was passed by the qualifiedmajoritiesrequiredfor amendingacts.17The EnablingAct, however, was not only an amendmentof one or several clauses of the constitution but it amounted to a complete overthrowof the constitutionalorder then existing. Such a basic alteration of the entire constitutional structure, a "total revision"in the sense of the French and Swissjurisprudence, is beyond the jurisdictionof the normal amending organs. It should be submitted to the "original constituent power of the entire German nation."'8 Although the majority of constitutionallawyers before I933, dismissing this distinctionbetween ordinaryand basic alterationsof the conmaintainedthe applicabilityof Article 7620 for all amendments stitution,I9 whatsoever, it should be noted that the National Socialist party represented only a minority and that even by adding the votes of its partner, the GermanNational People's Party, it remainedconsiderablybelow the universally accepted minimum requirementsfor an amending majority. Another challenge to the constitutionality of the Enabling Act is even more serious. It was passed by a 494-94 vote in the Reichstag, thus conformingformally to Article 76 of the constitution. But 8i deputies of the outlawedCommunistparty wereillegallybarredfrom attendingthe meetI6 See the statementof the Minister of the Reich,Dr. Frick,in the Rulescommitteeof the Reichstagon March 25, I933; Reichsanzeiger (March 25, I933). 17This methodof amendingthe constitutionindirectlyhad been constantlyappliedsince lawyersraisedstrongobjectionto the laxity of the process;see 1919, althoughconstitutional
Loewenstein, Erscheiningsformen 56 if. (I93I).

I8 Such,at least, was the opinionof HerrCarlSchmittand his school who wereinfluential beforeand after the "fall of men" (meaningthe light-hearted changeof colors of formerop92 if., 99, 105 (I928). ponentsof the regime)in March,1933; see Schmitt,Verfassungslehre I9 See Anschtitz,Die Verfassung des DeutschenReichs 403 (4th ed. 1933). 20 Constitutioncontainsthe provisionsfor amendment: two-thirds Art. 76 of the Weimar vote of two-thirdsof the Reichstag.
544
ing and of the I20 members of the Social Democrats only 94 were admitted.2! In addition, 92 members of the Catholic Center, the Social Democrats, and minor "splinter parties" voting for the act were prevented from giving a free and unbiased vote. The mob unleashed by the government ruled the capitol and the vote was taken in an indescribable atmosphere of terrorization and coercion. The final point bearing essentially on the constitutionality of future legislation on the basis of the Enabling Act is the most important. The act declared in Article 5: "Furthermore this act ceases to be effective when the present government of the Reich is replaced by another one." On June 29, 1933, Dr. Hugenberg, Minister of Nutrition and Agriculture, resigned from the cabinet under pressure. By the withdrawal of the foremost representative of the German National People's Party the very nature of the coalition government was destroyed because only by support of the German Nationals had the National Socialists attained the relative majority of votes and seats. It can be argued that the cabinet of Hitler, after the resignation of the coalition partner preserved its formal identity and that no new cabinet was summoned; yet the crux of the situation was not different from that under the Enabling Act of 1923.2 The powers of the Enabling Act were accorded to a coalition government which as such had received the parliamentary mandate. After the resignation of the German Nationals, followed immediately by the suppression of the party itself, the political identity of the cabinet was fundamentally changed. By no stretch of imagination could it be maintained that the sweeping powers of the act would have been given to the National Socialists alone because the presence of the German Nationals in the government was considered by all parties voting for the act as a sort of political brake. Thus the act lost its political basis and thereby also its legal justification.23 It is not beside the point to stress here these constitutional aspects of the situation because, if the Enabling Act itself is invalid, every single
21 Most of the deputies excluded were in hiding, in exile, in concentration camps, or assassinated.
22 The Enabling Act of October I0, 1923 (RGB. I, 943) was to expire if and when "a change occurs in the present Reich government or in the-parties of which it is at present composed." After the Social Democrats had resigned from the coalition the act became automatically invalid. The formulation in I923 differed from that in I933 in so far as the act of I933 lapses "if the present Reich government is replaced by another one" while the act of I923 was to expire when the coalition broke, but in both cases the implied meaning was the same. Thus the 1923 act would seem to provide a pertinent precedent for the subsequent invalidity of the 1933 act.
23 Needless to say nobody within Germany dared to allude to this fact nor did it find adequate attention of the constitutional lawyers outside of the jurisdiction of the Third Reich.
545
step of the subsequentrevolution on the basis of the Enabling Act leads Whileit may be correctto say that no revoluinto a legal no-man's-land.24 tionary governmentis to be subjected to the legal standardsof the order which it has overthrown,it must be clearlyunderstoodthat even a revolutionary governmentis bound by the legal standards established by it as guidance for future actions. Otherwiseit forfeits the title of a constitutional governmentof its own right-a title which the National Socialists are so anxious to claim.25 On November I2, I933, a new Reichstag was elected which, besides a few non-party membersappointed on the National Socialist ticket, containedonly party representativesof the National Socialists,the only political party legally recognizedsince July, I933. By the ReconstructionAct
of January 30, I934, which is also an organic act,26 the Reichstag con-
without any ferredunanimouslyupon the cabinet the pouvoirconstituant limitations,thus demolishingthe last residuesof constitutionalguarantees of the EnablingAct. Article 4 declaresin unequivocalterms: "The governmentof the Reich may enact new constitutionallaw." Henceforward, the amendingprocess became identical with the ordinarylegislative procedure, both being exercisedby simple governmentdecree.
THE VALIDITY OF THE WEIMAR CONSTITUTION
The Constitutionof Weimarwas never formally repealed. This would happenonly if a new fundamentalcharterwereenacted. Since the government may, by simple decree, establish new constitutional law, those institutions of the Third Reich which are in conflict with the Weimar constitution are valid only in conformity with the principle of lex posterior legi priori.2 Occasionallyinstitutions of the WeimarCharterwere derogat
4 This argumentaffectsparticularly the constitutionalityof the act concerningthe prodissolution hibitionof politicalpartiesof July I4, I933 (RGB. I, 479) by whichthe preceding immediately partywasproscribed of the otherpoliticalpartieswaslegalized. The Communist at the end party was prohibited after the electionsof March5, 1933. The SocialDemocratic of the Reich Ministerof the of the Landeron instructions of June, 1933,by the governments only by had not even the pretextof legality and was accomplished Interior.This procedure political suicide by "self-effaceterror or actual violence. The bourgeoisparties preferred ment" under the coercion of the SA, the storm troopers, and the Political Police. All partieswerewipedout withinone week (June 26 to July 5, I933). Similarlythe electionsof Act of January30, 1934 (RGB. I, 75) are devoid NovemberI2, I933, and the Reconstruction of constitutionality.
25 26 27
See Loewenstein, Law in the Third Reich, 45 Yale L. J. 779, 812 ff., notes I2I-24 Gesetz iiberden Neuaufbaudes Reichsof January30, I934 (RGB. I, 75).
(I936).
Technicallythe pattern of constitutionalamendmentwhich consists in enacting new amendprovisionswithout formallyrepealingthe older ones is spokenof as "constitutional see Loewenstein,Erscheinungsment by way of dislodgment"(Verfassungsverdrangung);
formen II3 ff., I49ff.
(I93I).
546
formallyabolished-such as the FederalCounciland the Reich Economic Council in I934. In other instances provisions of the former charter, whilegenerallymaintained,weresubjectedto restrictionsor exemptions,28 accordingto the principleof lex specialisderogat legi generali.9 More frequently, however, the new constitutional law may be characterizedas having informallyoverruledolder provisionswhich were deemed incompatible with the National Socialistpostulate of the supremacyof the totalitarian leadershipstate. Instead of explicit judicial or governmental act the mere assumptionthat a formerprovisionconflicts with the new difficulties for system of law suffices. This vaguenessentails considerable the courts in applying the law. After some significantvacillations the National Socialistdoctrinerevertedto the principlethat the judgeis subject to the law. But in view of the manifest contradictionsbetween the old and the new fundamentalprinciples, what exactly is the law? A broadrule of interpretationis supposedto solve the problem. The judge is to decide according to judicial discretion and conscience whether a statutory provisionnot yet repealed is in conflict with the spirit of the new order. Evidently no doubt arises as to rules of law passed since the seizureof power. The new law as the binding expressionof the Leader's will claimsprecedenceof right over all other rulesof law even if contained in the formerconstitution. Concerning the rules passed priorto the National Socialist revolutionthe judge is bound only by his conceptionof the National Socialist "spirit." The altogether unique and paradoxical situation exists that the new National Socialist law overrides not only formerordinarylaw but also formerfundamentallaw. Thus the bulk of the Constitutionof Weimaris "de-constitutionalized."30 This impliesthat parts of the WeimarConstitutioncontinued to be in force although deprived of their formal characterand subject to being amended at any time by governmentaldecree,governmentordinanceand statutes passed by the Reichstag. Whatever the reference to the National Socialist "spirit"may mean, the obviousresult is constitutionalchaos in the place of a clear-cuthierarchybetween organicand ordinarylaw. arosein connectionwith the Bill of Rights of the Particulardifficulties secondpart of the constitution. The most importantamongthem31were
28 This pattern of constitutional amendment is spoken of as "perforation" of the constitution (Verfassungsdurchbrechung); see Loewenstein, Erscheinungsformen I64 ff., 233 ft.
(I 931).
9 The numerous violations of Art. Io9 (guaranteeing equality before the law), in dismissing public officials for "political unreliability," or the exclusion of the Jews from the civil service and the professions, and depriving them of political rights, are illustrations. 3oSee Loewenstein, Law in the Third Reich, 45 Yale L. J. 779, 802 if. (1936).
3'
See note 7 supra.
547
suspended on the basis of Article 48 by ordinance of the President of

February 28, I933. This temporary expedient has never been repealed
althoughthe regimehas stabilizeditself in the meantime. But most of the other guaranteed rights are equally outlawed, such as the principle of
equality32 and the well established principle of nulla poena sine lege.33
The act on the prohibitionof political parties34 suppressedthe freedom of of of association and public Space forbids giving a opinion.35 assembly, detailed description of how the second part of the constitution was Violationsof the right of private property and of the guaranscrapped.36 tee of vested rights-a legal term which in Germanyhas no political connotation as in this country-were so frequent that at present they pass unnoticed.37 In brief, the Constitutionof Weimarthough not formallyrepealed has been materially abrogated. The constitutional lawyer should no longer
evaluate the new revolutionary order in terms of a constitutional system
3$ Art. Io9. The concept of equality is particularly obnoxiousto the National Socialist as against what is called doctrinewhichextols the values of the "elite"and of the "leaders" of democratic the "soullessmechanization equality." 33Art. ri6. This principle, unconditionally recognizedby all civilized nations-was officiallyabolishedby the act of June 28, I935 (RGB. I, 839) concerningadditions to the penal code. Convictionof the accused"by way of analogy" was introduced,which allows althoughthe actual facts of the case may not justify it. In additionpunishment punishment of the crimewas madecompulsoryby the standardsof what withoutpreviousdetermination of the people" as interpretedarbitrarilyby the has been called "the sound consciousness judge. 34 See note 24 supra. The right of the freedomof opinionwas officiallydenied by the Editors Act (Schrift35 leitergesetz)of October4, I933 (RGB. I, 713) by which the exerciseof the journalisticprofessionis madedependenton politicalconformity. 36One of the very few constitutional whichthe courts werepermittedto incontroversies the freedomof dulgein arosein connectionwith Art. I37 of the constitutionwhichguarantees associationfor religiouspurposes.Severalof the less coordinated highercourtsinsisted that was not implicitly this article,becausenot conflictingwith the National Socialistprinciples, (similarto the abolishedand that thereforethe religioussect of the "Emste Bibelforscher" of Jehovah"who refusedto salute the flagin this country) shouldbe permittedto "Children them Communists.On the legal controversy, continue. The problemwas solved by declaring
see Potzsch-Heffter, Vom deutschen Staatsleben (vom 30. Januar bis 31. Dezember, I933),
und 22 Jahrbuchdes offentlichenRechts 210ff. (I935); Stodter, Verfassungsproblematik Rechtspr , 27 Archivdes offentlicen Rechts(N.F.) i66 if. (I936). Seefurtherthe decisions Wochenschrift Court(Reichsgericht), of the Supreme 767,2070 (1934);OberlandesJuristische Wochenschrift Breslau,DeutscheRichter I774; Sondergericht gerichtDarmstadt,Juristische
zeitung no. 432 (I935); Hanseatisches Sondergericht (City of Hamburg), 57 Reichsverwaltungsblatt 700 (I935).
37The authoris preparing a study on the positionof privatepropertyin the Third Reich on the basis of officialdocumentation,that the confiscatorytrend of which demonstrates, totalitarianlegislationand of the practiceunderthe Four YearsPlan comesvery close to the underBolshevism. property systemof restricted
548
THE UNIVERSITY OF CHICAGO LAWREVIEW
which,by the forceof revolutionary logic, has passed fromactuallaw into history.
II. THE FEDERAL STRUCTURE IN REICH AND LANDER38
THE TRANSFORMATIONOF THE FEDERAL STATE INTO THE UNITARY STATE
Besides the substitution of the monocraticsingle party state for the state, by far the most conspicuous multipleparliamentary developmentin of the federalinto the Germanysince I933 consistsin the transformation unitary and centralizedstate. Objectively seen this change represents that achievementof the regime which is most likely to be permanent. Beyond doubt, the administrativeunificationof the Reich was delayed by the intrinsiclaws of Germanhistory. Even the WeimarConstitution offeredlittle morethan a hesitant and transitionalsolution. The political trend of our age is certainly toward centralization. Grave doubt, however, exists as to whether the sociological stratificationof the German people justifies the headlong plunge into rigid centralizationwhich deliberatelyneglects religiousdiversitiesand the tribal peculiaritiesof the country. The culturalmultiformity,perhapsthe most attractiveresultof historical development,was scratched out by a stroke of the legislative however,meets the necessitiesof dictatorship, pen. Rigid centralization, which is bound to dominate the territory without intermediaryinstitutions. Thus political coordinationbetween Reich and Landerpromoted the political aims of the governmentwhich, by coercion,could overcome successfullythe historical and sentimentalresiduesof federalism. was accomplishedwithinless than one year.39The The transformation the Reich and Lander"of March, act for "co-ordinating first preliminary
1933,4? was aimed mainly at leveling down the existing political differences
within the variousstates. On the basis of the second act for coordinating
the Lander with the Reich of April, 1933,41 Reich-Regents (Reichs-Statt-
halter) were appointed by the Reich President, on advice of the ReichThe task of the Regents was that of enforcingthe political Chancellor.42
38 The Lander are the states of Germany, such as Prussia. 39See Wells, Liquidation of the German Lander, 30 Am. Pol. Sci. Rev. 350 (1936) for an excellent discussion. 40 Vorlaufiges Gesetz zur Gleichschaltung der Lander mit dem Reich of March 31, 1933 (RGB. I, 153). 64Second Gesetz zur Gleichschaltung der Lander mit dem Reich of April, 7 I933 ? 2 (RGB. I, 173) with alterations of April 25, 1933 (RGB. 1, 225), May 26, I933 (RGB. I, 293) and October I4, 1933 (RGB. I, 736). 42Reich-Regents govern at present the following eleven Lander: Bavaria, Wiirttemberg, Baden, Saxony, Thuringia, Hesse, Hamburg, the two Mecklenburgs (now united into one adminiktrative unit; until 1937 the Regent for the Mecklenburgs was also Regent for Lubeck),
549
instructionsof the Reich Chancellor.43 On the whole they functioned as a sort of state president appointedby the Reich. While removed from local politics, the Regents were authorized to appoint and dismiss the state governments, to dissolve the local parliaments and to appoint the local officials. Only for Prussia did the Reich Chancellorreserve to himself the powersof the Prussian Regent and simultaneouslydelegated them to the PrussianPrime Minister.44 Thus the institution of the Reich-Regentsguaranteed political unity within the states and political conformitywith the Reich because the Regents as subordinatesof the SupremeLeader represented the interests of the Reich and not of the Lander. Prussia, by the personalunion of the offices of the Reich Chancellorand of the Prussian Regent, became a sort of jurisdictionalprovince of the Reich. In spite of these changes the dualism between the Lander and the Reich which was among the main causes of the downfall of the Republic was by no means overcome permanently. In fact, the federalistic spirit of resistancewas so deeply rooted, that the Landerpreserveda considerable degreeof individualityas political units. The influenceof a nationally homogeneousparty helped little in suppressing federalistic tendencies, nor did the Regents, as is illustrated by the attitude of the Bavarian National Socialists who were pursuing decidedly Bavarian interests. Thus the complete elimination of the Lander as quasi-independentpolitical entities became inevitable lest the traditionalfederalismwould transcend the frame of the single party state. This huge step was taken in the Reconstruction Act of January 30, I934,45 the second organic act of the Third Reich. The sovereign powers of the states were transferredto the Reich while the governmentsof the states were reduced to agenciesof the Reich government. The Regents were subordinated to the Reich Minister of the Interior. The result is that at present the Reich for all intents and purposes is a unitary state and that the Lander are only provincial units administeredby the Reich. The governmentsof the states are converted into bureausof the Reich, the officialsof the Landerare henceforward officials of the Reich and almost all powers of the Lander were transferredto the central authorities. The plan of a regionalsubdivisionof the Reich on geographicalor rathand Bremen,Brunswickand Anhalt, and the two Lippes. These territoriesare Oldenburg of the very unequalin size and populationand still reflectthe traditionaldynasticboundaries German states.
43 Act of April 7, I933 ? i. See note 4I supra. 44Edict (Erlass) of the Reich Chancellor of April 23, 1933 (RGB. I, 226). 45Gesetz zum Neuaufbau des Reichs of January 30, I934 (RGB. I, 75).
550
er economic lines, much debated and until now beset by insuperable obstacles, has not yet materialized. Only the Lander of MecklenburgStrelitz and of Mecklenburg-Schwerin have been merged into one Land Mecklenburg.46 Minor rectifications of the state lines by exchanging territories between the Lander of Prussia, Hamburg and Oldenburg were accomplished in the so-called "little Reich reform" of I937 by which also the time-honored Free City of Liibeck was wiped from the map and its territory distributed among the neighboring Lander.47 Any major reconstruction of the territories of the Lander on what is called rational or economic lines seems, at least for the time being, impossible, perhaps because of the underground resistance of local interests. Yet an attempt was made to break down the stubborn homogeneous state consciousness of Prussia by making the governors of the Prussian provinces (Oberprasidenten) the immediate and personal agents of the Reich government. Finally political friction arising from the fact that the Regent was personally subject to the orders of the Reich Chancellor but beyond the jurisdiction of the Minister of the Interior was removed by the Reich Regents Act of January 30, I935,48the third of the organic acts. The Regent became a subordinate of the Reich Minister of the Interior and thus was incorporated into the Reich administration as a normal organ. On the whole, this move was equivalent to a capitis deminutio of the Regents. Although nominally not officials of the Reich,49 they are political organs of
46Gesetz iiber die
von Mecklenburg-Strelitz mit Mecklenburg-Schwerin of Vereinigung
December i6, I933 (RGB. I, io65). The position of the Saar after the return to Germany was
revisedby the Gesetz uiber die vorlaufigeVerwaltung des Saarlandes of January30, I935 of the Saarinto the Reichafterseventeen (RGB.I, 68). The re-incorporation yearsof separation in whichthe socialstructure of the Reichhadbeencompletelychanged offered legislative and administrative of the firstmagnitude.The accomplishment of the task shows problems the ministerial at its best. bureaucracy 47Gesetz tiber Grosqhamburg und andere Gebietsvereinigungen of January 26, I937 (RGB. I, 9I). For a long time the denselypopulateddistrictaroundHamburg badlyneeded a territorial becausepartsof the areaof the city of Hamburg realignment belongedadminisa "Land"Hamburg(the Hansestadt tratively to three differentstates. The act organizes increased.No betterillustrationof the Hamburg),the territoryof which was considerably subordinate in Art. I, ? 4 politicalpositionof the Linder can be found than in the provision of the act: "Constitution and administration of the Land Hamburg and of the Hanse-City of Hamburg of the Interior in consultation withthe Deputyregulated by the Reich-Minister Leader."Thus not even the ReichRegentof Hamburg in the establishment of participates the fundamental orderof the Land.
48 Reichsstatthaltergesetz of January 30, I935 (RGB. I, 65).
49Until the enactmentof the new Public Officials Act of January26, I937 (RGB. I, 39) the Regentswereunderthe Reich-Minister Act of February 27, 1930 (RGB. I, 96) and the
act of June 30, 1933 c. 6 (RGB. I, 433). The Public Officials Act of 1937 ? I84, however, re-
55I
the Reich subject to direct ordersof the Reich government. In their present status they function as intermediaryagenciesbetween the central and the local administrations,but their political power and actual sphere of influenceis very limited, in fact they are more a sort of a bufferbetween the provinces and the capital than a center of independent action. The solution ultimately found seems logical and satisfies the end of maintainingthe essential unity of political commandwhile allowingfor a certain elasticity of local enforcement. On the other hand the consciousness of statehood which in the past has been one of the cornerstonesof Germanpolitics is submergedfor the time being. It remains to be seen whether or not a resurrectiontakes place whenever the pressure of the one party state relaxes. As to the relation of the Reich legislation to the legislation of the Lander, the ReconstructionAct of I934 disposed of the independentlegislative powersof the Landerby monopolizingthe legislative jurisdiction in the hands of the Reich. Actually, however, the authorities of the Lander exercise, by delegation from the Reich, the legislative power in purelylocal matters. Controlof the Reich is provided for by the fact that local statutes may be enacted only by explicit consent of the Reich minister to whose department the matter belongs.50In conformity with the suppressionof the Lander, uniformReich legislation spread rapidly over all fieldspreviouslyreservedto the states. This process,perhapsthe most beneficialof all steps undertakenby National Socialism, is called "Verreichlichung." Since it is impossible to enumerateall such uniform statutes only a few of the more important fields are mentioned here: civil service, trade and crafts, press, administrationof justice, taxes, traffic, local government,police and even most of the culturalactivities.
THE ORGANIZATION OF THE LANDER
It is misleading, however, to assume that Germany is at present a homogeneousand uniformcountry like Franceor Italy. It wouldbe more appropriateto liken the present status of the Lander to that of Scotland or Wales within the frame of the United Kingdom. The situation may be summarized as follows: since progressively more functions of the Lander were transferredto the Reich, the independent governments of the Landerwere more and more "hollowedout." Graduallythe political
pealed most of the Reich-Minister Act of I930 by incorporating many of the provisions of the older act. The author was unable to verify whether or not this act changed the position of the Reich Regents. 50 First Ordinance concerning the reconstruction of the Reich of February 2, ?? i, 3 I934, (RGB. I, 84).
552
LAW REVIEW THE UNIVERSITYOF CHICAGO
institutions of the Lander were thrown on the dust heap. First to disappear were the Lander diets.51 The powers of the suppressed parliaments, insofar as they survived were usurped by the Lander governments, a process which reflects faithfully the identical development within the Reich.52 As a final solution the Reconstruction Act of I934 not only abolished the parliaments of the Lander altogether, but transferred also, as a consequence of the disappearance of the legislative powers of the Lander, the Lander governments into agencies of the Reich exercising powers delegated by the Reich. What little of legislative functions is still left to the Lander is thus only re-delegated on trust from the Reich to the Lander.53 If the Reich prefers to have a statute passed which applies only to the territory of the former Land, the government of the Land may do so by and with the consent of the Reich Minister to whose jurisdiction the matter belongs. While nominally such an act bears the signature of the government of the Land it is actually an act of the Reich. It is not clear why this indirect method of federal legislation was established. It would be more logical if the Reich government legislated on Prussia or Bavaria directly, as Congress legislates for the District of Columbia or the British parliament for Scotland or Wales. In view of the fundamental change in the federal structure the Federal Council (Reichsrat), hitherto the organ of the collective will of the Lander, was abolished.54 The final solution brought the Reich Regents
5s The (First) Act for the coordination of the Landerwith the Reichof March31, 1933 of the dietsin conformity with not re-election, for a re-appointment, (RGB. I, 153) provided was the results of the Reichstagelectionsof March5, I933. Only the Prussianparliament
excepted which had been elected simultaneously with the Reichstag on March 5, 1933. Sec. i
whenthe Reichstag wassubthe automaticdissolutionof the Lander-diets of the act decreed electionsfor the Lander-parliasequentlyto be dissolved. Be it noted that the independent ments duringthe Republican periodhad servedthe same usefulpurposeachievedby "byelections"for the British parliamentin indicatingthe trend of public opinion.The Nazi on suchlocalelections machine the wholestrengthof the powerful strategyhad concentrated on the public,especiallyin such states wherethe movein orderto impressits irresistibility
ment had less support. By telegram (sic) of Nov. i6, I933, the Minister of the Interior in-
See Potzsch-Heffter, Vom structedthe Regentsto foregonew electionsfor the Lander-diets. des 6ffentlichen Staatsleben (vom.30. Januarbis 3I. Dezember deutschen I933), 22 Jahrbuch
Rechts I53 (I935). Thus the Lander-parliaments ceased to exist. s2By ? i of the Coordination wasempowered Act, see note 40 supra,the state government
the powersof the parliaments decreeoverruling to enact rulesof law by government proper. decreecouldpassthe budgetandevenamendthe constitutional charter A simplegovernment
of the Land.
53Seethe important of the Reichof February FirstOrdinance the reconstruction concerning

2, 1934, ? I (RGB. I, 8i). 54Gesetzuiberdie Aufhebung des Reichsrats of February 14, I934 (RGB.I, 89). Similarly
the Reich EconomicCouncil(Reichswirtschaftsrat), at first reorganized (see act of April 5, by act of March23, I934 (RGB. II, IS5). I933 (RGB. I, I65)), was abolished
553
Act of January 30, I935,55 which eliminated the last remnants of the separate governmentsof the Lander. The Ftihrerand Reich Chancellor may intrust to the Reich Regent the actual conduct of the government within the Land. Ministers of the Landerwhereverthey survive are appointed and dismissed by the Fiihrer,on suggestion of the Regent. The Regent promulgatesthe statutes of the Lander after having obtained the consent of the Reich cabinet. It is significant that in spite of the uniformity intended by the Reich Regent Act the actual situation varies still in the various Lander. In Bavaria a Prime Minister and a government exist besides the Regent,?6 while in Saxony and Hesse the officesof Regent and of Prime Minister are merged in the person of the former.57In Prussia the situation is again different. The Fiihrerand Reich Chancellorholds nominally the office of the Regent, but actually, by delegation,the functionsare exercisedby the Prussian Minister President. The members of the Reich cabinet are exofficiomembersof the Prussiancabinet with the exception of the Minister of Finance of the Reich, becausePrussiastill retains her own Ministry of Finance. In order to avoid duplication in staff and administration all other originally separate departments of Prussia were in due course abReich ministries. Thus the Prussian governsorbedby the corresponding ment is an integral part of the Reich government and conversely. This solution of the dualism between the Reich and its largest member state, Prussia, is strikingly similar to the constitutional settlement under the Bismarck constitution of I87I, a fact which once more indicates the law of inertia governingstructural change. In this connection,mention should be made of a new institution, namely the so-called Council of State in Prussia established for advising the which is a rather superfluousimitation of the Italian state government,58 Gran Consiglioof the Fascist party. All the highest party officialswere appointed to it by the Minister President, in addition to representatives of the church, economic life, labor, science and art, and "other men of merit in the state and nation." Membershipis for life but dependent on the tenure of the party office. The Council of State is merely decorative.
ss Reichsstatthaltergesetz of January 30, I935, ??4, 5 (RGB. I, 65). s6 In Bavaria the district party leaders (Gauleiter) hold at the same time the office of the head of the state district administration (Kreisregierung). They are ex-officio members of the Bavaria cabinet (without portfolio). s7Edict of the Reich Chancellor of February 28, I935. 58 Prussian Law of July 8, I933, Gesetzessammlung 241. Hamburg has a similar advisory institution.
554
While no political importance whatsoever is attached to it, it is a conspicuous instrument of legalized party patronage.59
OF THE REICH (REICHSFUtHRUNG) HI. THE GOVERNMENT
THE HEAD OF THE STATE: THE FUHRER AND REICH CHANCELLOR
The essence of the political revolution in Germany may be expressed adequately by the simple statement that the will of one man alone, the Ftihrer, is sovereign, free from any constitutional limitations whatsoever. This unequivocal fact, however, is embedded in involved terms of constitutional law, evidently because the prejudices and habits of the German people cling stubbornly to the legalistic mummery by which arbitrariness is disguised. Psychological rather than technical considerations are responsible for the preservation of the traditional forms of constitutional law. While every pattern of constitutional government is necessarily complicated and difficult in operation because of the cooperation of various organs, the dictatorship of the Third Reich is an exceedingly simple, intelligible and logical mechanism. During the lifetime of Reich President von Hindenburg, the dualism between the Reich-presidency and the office of the Fiihrer and Reich Chancellor had to be maintained for symbolic reasons although the Reich President had been denuded of most of his powers.6? The reservation of the Enabling Act that "the powers of the Reich President are to remain untouched" was practically meaningless because the functions of the President in connection with the legislative
5sAccording to ? I4 of the Lawon the Councilof State,the officeof the Councillor of State is an honorary one with which,in additionto the gratuitous use of all state railroads, a salary is connected.The monthly remuneration amountsto Iooo marksfor members outresiding sideof Berlinandto 500marks forthosewhoareresidents of the capital. Executory Ordinance of July 7, I933, Gesetzsammlung 265. All members of the Council of State are wealthy men
or deriveincomefromotherstate or partyoffices.Yet the law explicitlyforbidsrenunciation of the salary,a pertinent illustration of the official takesprecedence sloganthat "commonweal overprivateweal." 60 The "OldMan"wasalreadyduringthe last yearsof the Republic a deliberately built-up of Dr. Brining is muchmoreresponsible than the National legendfor whichthe government Socialists didnot shy awayfromviolentattacksuponhis person. who,whenstill in opposition, It fits wellinto thepictureof politicalcorruption fromthe Repubthe transition accompanying lic to the singlepartystate of the NationalSocialiststhat he who,by virtueof his oath, was to be "the custodianof the constitution," as HerrCarlSchmittand othersemphasized, becamethe official"protector of the ThirdReich"immediately afterthe wirepullers of the "national revolution" had persuaded himto changehis colors. As substantial for his hisreward toricalmissionhe accepted fromthe Reichthe gift of the largeestateof Langenau "rounding off" the family estate of Neudeck. By the act of July 27, I933 (RGB. I, 595) the estate of Neudeckthusenlarged wasexempted fromall taxes "during tenureby a male member of the The statute book revealsdiscreetlythe importantrole played family of von Hindenburg." by the male heir,HerrOskarvon Hindenburg.
555
process were overriddenby the practice of governmentdecrees. The personal confidenceof the President in the Chancellorwas, in view of the revolutionarypressureof the mobilizedparty, a mere fiction. Still important, however, was the fact that the President was constitutionally the of the armed forces, the Reichswehr.6' commander-in-chief The latent conflict was solved, after the death of von Hindenburgon
August i, I934, by the act concerning the head of the state, the Succession
Act, anotherorganicstatute of the Third Reich.62The officesof President and Chancellorwere merged into one, and the powers of the President were transferredto the Fiihrer and Chancellor. Thus finally the statute book reflected what already existed in reality, namely, the unlimited sovereignty of the Fiihrerwithin the Germanrealm. The official title of Hitler is now that of "Fiihrerund Reichskanzler."63 At present the powers of the Fiihrer and Reich-Chancellormay be grouped along the following lines. First, he exercises all powers which still belong to the President according to the Weimar Constitution, inpower to dissolve the cludingthe supremecommandof the armedforces,64 Reichstag, to appoint and dismiss the Reich ministers and the public officials, the privilegeof mercy-which, underthe Third Reich, was extended to the discretionarypower of quashing pending criminal proceedings,and functions of representingthe Reich internationally,and of remodelling the governmentaldepartments (Organisationshoheit).In the second place he has a new series of powers, derived from the organic acts of the regime such as the powers of appointment and dismissal of the Reich Regents, the ministers, the officialsof the Lander, and power to appoint the Deputy-Leader.6' Finally, the Fiihrer is endowed with those powers which spring from the National Socialist mythology. By their very nature they are incapable of being integrated by the lex scripta. Although
6I When the Ftihrer rid himselfof the allegedly restiveleadersof the party army, the SA, of the immiby the ominousblood purgeof June 3o, I934, he anticipatedthe consequences nentdeathof the ReichPresident, Autocracy Augusti, I934. Seeon this subjectLoewenstein, versusDemocracyin Contemporary Europe,29 Am. Pol. Sci. Rev. 589 (I935). Thus Hitler was relievedfrom makinga choice between the two rival bodies of the regularand of the revolutionary party army and was able to enlist at once the wholeheartedsupport of the whichthe blood purgerestoredto its undisputed militarymonopoly. Reichswehr, 62 Gesetzuiberdas Staatsoberhaupt des deutschenReichsof August 2, I934 (RGB. I, 747). 63The bureauof the Reich President,the presidentialChancellery(Reichskanzlei), re-
mained unchanged. 64 Even the imperial title of "Supreme War Lord" (Oberster Kriegsherr) was, at least unofficially, restored. 65 This right is not yet exercised. Hess acts as Deputy-Leader only in respect to the party.
It is morelikely than not that G6ringone day will be promotedto the title and officeof the of the entirestate. Deputy-Fiihrer
556
as follows:the they defy adequatetranslationthey may be characterized Ftihreris the "bearerof the legal will of the racial community"as well as as "addressee of the duty of fealty" the bearerof theultimateresponsibility (Treupflicht).All ministers,officials,Regents and membersof the armed forces are responsibleto him alone. "All powers are concentratedin his person while he himself is responsibleonly to the nation."66Evidently these mystical and symbolic powers are better translated into terms of theology than of law and while they have the most tangiblereality for the time being, they can be evaluated only by the judgment of history. In view of the fait accompli the plebiscite taken on the mergerof the offices
on August 19, I934, was significant only as a declaratory statement.
In conformitywith the new notion of responsibilityin the "leadershipare state" the traditionalduties incumbenton all kinds of officeholders convertedinto the ethical conceptsof fealty similarto those governingthe feudal relationshipbetween the lord and his retainers (Treueverhaltnis zwischen Fiihrer und Gefolgschaft). The official doctrine of National Socialismemphasizesthis irrationaland mystical mutuality of support and protection,of confidenceand responsibilityas a fundamentalelement of the new constitutionalorder. Outwardlythe new concept of loyalty is reflectedin the oath of allegianceto be swornby all personsholdingoffice The solemn obligationis not given to in party and state to the Ftihrer.67 the abstract entity of the state but to the human person of the Fiihrer himself.
THE CABINET (REICHSREGIERUNG)
Under the WeimarRepublic,the Reich governmentwas a rathercomplicated blend of a parliamentarycabinet, acting in collective capacity, and the Bismarckian"chancellorprinciple"which operated on the assumption of the monocratic responsibilityof the chancellor. Furthermore, under the Republic the constitutionalposition of the government was obfuscatedby the contradictionthat it was dependenton the confidence of both the President and of the Reichstag. This much deplored constitutionalambiguityled to the practiceof presidentialcabinetswhich became inevitable when the strong radical parties on the right and the left wing refusedto lend themselvesto parliamentarycollaboration.
The Minister of the Reich, Dr. Frick, in a conference of the press held on January 9, I935, see Meissner-Kaisenberg, Staats- und Verwaltungsrecht im Dritten Reich 49 (x935). 67 Gesetz Uiber die Beeidigung der Beamten und der Soldaten der Wehrmacht of August 20, und der Mitglieder der LandesI934 (RGB. I, 785); Gesetz iiber den Eid der ReichMminister regierungen of October i6, 1934 (RGB. I, 973); Public Officials Act of January 26, I937, ? 4 (RGB. I, 39): "I shall be faithful and obedient to the Fiihrer of the German Reich and Nation, Adolf Hitler, and I shall fulfil conscientiously the duties of a public official, of which the Lord be my witness."
66
557
During a short period after the advent of the National Socialists to power, the characterof collective solidarity within the cabinet was preserved, at least as a fiction. After the GermanNationalists were thrown out of the cabinet the leadership-principle was substituted for the power of the Chancellorof determining,as primusinterpares, the generalpolicy of the government (Richtlinienbestimmungsrecht).The Succession Act of I934 officiallyconfirmedthe actual practice. Now the membersof the cabinet obey the command of the leader (Fiihrerbefehl)binding upon all. Thus the individual minister is subjected to the discretionaryinterferenceof the Fiihrereven within his own department.68The leadershipprincipleprecludesvotes among the membersof the cabinet; the individual ministerconducts the businessof his departmentalone, subject to instructionsof the Chancellor,who also straightensout differencesof opinion among the ministers.69Important decisionsof the ministers as heads of the departmentsneed also the consent of the ministersof Finance and of the Interior and in addition the Deputy-Leader may veto them. On the whole the individual ministers are more independent than under the formercollective system.70 Ministers without portfolio may be admitted to the cabinet.7T The legal position of the ministers, at first regulated by the formerMinistersAct of I930, was recently restated by the Public Officials Act of I937.72
68The StandingOrders of the Reichgovernment(Geschaftsordnung) of May 23, I924, and April I4, I926 (RGB. (1924) I, 173, id. (1926 )I, 319), one of the most remarkable constituof the republic, tionaldocuments werenot repealed but adjusted. 69Evidently decisionstaken by the whole cabinet after oral discussionare rather an exception. It seems that as a rule decisionsare taken by way of signaturesattached to the minutescirculating of the cabinet.It maybe that the frequentabsencesof amongthe members fromthe capital,to whichhe allegedlyprefers his estateat Berchtesgaden, have conthe Fiihrer is on the waytowardbecoming a secondcapital tributedto this development.Berchtesgaden It is still customarythat the ministerwho is responsible for the act attacheshis signa7o ture next to the signature of the Fiihreron the act. By the countersignature he assumesreim Staats- und Verwaltungsrecht sponsibilitytowardthe Fiihrer.See Meissner-Kaisenberg, Dritten Reich 69 (I935). 71 withoutportfolioareat present: The Deputy-Leader Ministers priorto the assassination of R6hm,also the Chiefof Staff of the party army, and two other ministers,see Gesetz zur Sicherungder Einheit von Partei und Staat of Decemberi, 1933 (RGB. I, Ioi6). Several officesare directlyunderthe control of the Reich Chancellorsuch as the Chief of the Press for economicquestions. The Fiihrer attached to the Reich government,and Commissioner whichdoes not contributeto maintainsa sort of privategovernmentwithin the government the smooth operationof the administrative machineryat the top. 72Public Officials Act (Deutsches Beamtengesetz)of January 26, 1937 ? I56 ff., I84 (RGB. I, 39), whichrepealedthe ReichMinisterAct of I930/33. The ministersareconsidered Amtsnot as public officialsin the propersense, but as "holdersof public office"(offentliche of somepoliticalimportance. distinction trager),a ratherinexplicable apparently quasi-legal At present the following ministriesof the Reich exist: Foreign Office;Interior,for the
558

THE RECH PARLIAMENT (REICHSTAG)
In the state underthe leadership-principle the parliamentceases to be an independentorganof legislation. The Reichstaghas becomean instrument of dictatorship,destinedin the main for servingas a mouthpiecefor officialdeclarationsof policy on the part of the Fiihrer.73Although the Reichstag formally still holds concurrentlegislative powers, it has been called upon to legislate only in a very few instances. No discussionhas been demandedor permitted. After having listened, silently or clamorously, as the case may be, to the declarationsof the government,the in militaryobedienceto the command.74 Reichstaghas voted unanimously In spite of its rubberstamp character,the Reichstaghas been re-elected three times since I933. The first election occurredon March 5, I933; it was the last opportunityfor variousparties to vote. The secondelection, in the same year on November 12, served as a demonstration of national unity when Germanyleft the League of Nations, while incidentallyenabling the governmentto get rid of the limitations of the EnablingAct. The third election,on March 29, I936, followedthe breachof the Locarno of the Rhineland. In the last two elections Treaty by the remilitarization the ticket of the single party, the National Socialists, was offered. only All otherpartieshad been outlawedpreviouslyby the act prohibitingthe formationof new parties.75The universal,equal, secret, and direct suffrage is nominallystill in force. In conformitywith the raciallegislation Jews and Jewish "mixedoffspring"(Mischlinge)werebarredfromvoting at the electionson March29, 1936.76 The suffrageis in abeyanceformembers of the armedforces. Underthe system of proportional representation inheritedfrom the WeimarConstitutiona deputy for every 6o,ooo voters is provided. Not only has the numberof registeredvoters increasedconReich andPrussia; Economic andPrussia; fortheReich Finance; Life,fortheReich Labor, andPrussia; fortheReich andPrussia; Postmaster CommunicaJustice, Reichswehr; General; fortheReich andPrussia; Nutrition andAgriculture, fortheReich tions, andPrussia; Public and Propaganda; Enlightenment andCulture, for the Reichand Air;Science, Education, under theReich Forest Master. Prussia; Forests,
3 The description by Dr. Frick,Reich Ministerof the Interior,of the Reichstagas "the forumto whichthe Fiihrer and ReichChancellor of the German bringsthe essentialproblems nation'sinteriorand foreignpolicy for discussion and decision" is hardlyin conformity with the facts. Meissner-Kaisenberg, Staats-und Verwaltungsrecht im DrittenReich87 (I935). 74See the enumeration in note
I5 supra. 7sSee Verordnung zur Sicherung der Staatsfuhrung of July 7, I933 (RGB. I, 462) which
cancelledthe parliamentary mandates of the SocialDemocrats; Gesetzgegendie Neubildung

von Partein of July 14, I933 (RGB. I, 478). According to this act the maintenance of the
of a dissolvedparty or the formation of a new partyis treason. organization 76 Jews who vote in spite of the law are punished act of March7, I936 by imprisonment,
(RGB. I, I33).
THE GERMAN CONSTITUTION: 1933-1937
559
siderablyby the return of the Saar, the vote of Germanresidents abroad who were given free transportation,and the votes taken on board of German vessels abroad, but the political pressureof the party has in fact introduced compulsoryvoting and brought the percentageof votes cast to unprecedentedheights. The number of deputies accordingly rose from 647 in the election of March I933 to 66i in the election of November,
I933, and to 747 in the election of March, I936.
The monopoly accordedto the National Socialistswas justifiedby virtue of the act guaranteeingthe unity of party and state of December,
I933,77 which proclaimed, in ? i,
....
. The National Socialist Party is
the exponent of the Germanstate idea and thus insolubly fused with the state." Since primarieswere unfortunatelyconspicuousby their absence even under the Weimar Constitution the selection of party candidates is left exclusively to the discretion of the national manager of the party (Reichswahlleiter),the Minister of the Interior,in collaborationwith the nationalparty leadersand the district party leaders. The voter knew absolutely nothing about the compositionof the electoral ticket and the sequence of candidates on the list because the official ballot paper, headed in every constituencyby the Fiihrerpersonally,containedonly the names of ten prominent party leaders.78 In violation of the electoral law the party leadersselected the actual deputies among about a thousand candidates only after the poll was taken. Thus the voter simply endorses a more or less anonymouslist. Since it is technically impossibleand politically dangerousto reject the official ticket, it is a travesty of democracy to link this type of "acclamation"with Article i of the constitution, so much referred to under National Socialism, "All powers of the state emanate from the people." Elections in the Third Reich are compulsory popular ratificationsof party tickets in which the voter has no influence whatsoever.79
undStaatof December 77 Gesetz von Partei i, zurSicherung derEinheit 1933(RGB.I,
io66). 78 At the election in March, 1936,cursorynotes on the list of candidateswerepublished the elections. only on the day preceding the Saarvoters by 79 Accordingly fromamong fromthe Saarwere thedeputies appointed the Reich Chancellor.Moreover,the act amendingthe electorallaw of July 3, I934 (RGB. I, afterthe bloodpurgeof June30, I934, by whichalso 53o) decreedby the cabinetimmediately numberof National Socialist deputies were "preventedfrom exercisingthe a considerable to a concentration or confinement camp, reflects mandate,"by assassination parliamentary in the Reichstagis forfeited"by exclearlythe actualsituationby providingthat membership who fromthe parliamentary clusionorresignation party." By thislegal devicea partymember his seat againstthe will of the party;see the statefromretaining fell fromfavorwasprevented no. I55 (1934). By the same act the leaderof the parliamentary ment in the Reichsanzeiger party designatesthe successorof the eliminateddeputy amongthe substituteson the single party ticket presentedat the last generalelection to the constituency.
560
It is true that the Courtof Inquiryinto Elections, composedof memhas continuedto funcbers of the Reichstagand of the SupremeCourt8? tion for both elections and plebiscites. Its findings,published after inordinatedelay, have been valueless becauseno one dared to contest the legality of the electionprocedure. In addition,no impartialcontrolof the election processitself was possiblebecauseonly party memberswere admitted as membersof the election board and as returningofficersin the polling stations. The Germanelections are not to be evaluated in terms of democraticinstitutions. Organizedunder party pressuretheir result is a foregoneconclusion. Only the percentageof votes cast in favorof the regime remains to be determined. While the privilegesand immunitiesof the deputieshave not been formally repealed,they have become more or less meaninglesssince the removal of the constitutionalguaranteesagainst criminalproceedings8" because the principleof party allegianceand loyalty towardsthe Leaderwas substitutedfor the idea of free representation.It shouldbe noted that the compensationfor deputies of 6oo marks monthly ($240) continues although the Reichstagis convenednot more than once or twice a year.
THE PLEBISCITE
Officialspokesmenof the Third Reich untiringlyclaim for the regime or even "ennobled"democracy. the title of a "pure," "unadulterated," National Socialismis anti-parliamentarian though not anti-democratic. It is a truism that no governmenthowever authoritariancan maintain itself indefinitelyagainst the will of the majority. The only problemwas that of demonstratingurbi et orbi, the possibly unanimousendorsement of the governmental policy-not of the regimeitself-by the nation. Since National Socialismexcels in the art of creatingand controllingmass-emoof the caesartionalism,the restorationof the usus modernus plebiscitorum istic type offereditself as a convenientdevice.82 In deviationfrom the WeimarConstitutionthe plebisciteof the Third Reich is not a legislativeprocessalthoughthe PlebisciteAct of I933 states that "plebiscitesmay be taken also on statutes."83The governmentmay ask the people whetheror not they consent to a measureintendedby the
sWoeimar Constitution, Arts. 31, i66. a8 Gesetzuiberdie Immunitat der Abgeordneten of June 23, I933 (RGB. I, 391). 82See Loewenstein, Die Diktatur Napoleon des Ersten, i6 Zeitschrift fur offentliches Recht 635 (I936). Incidentally, the governmental system and technique of Napoleon reveal many striking parallels to the Nazi regime and modern dictatorships in general. See Loewenstein, The Dictatorship of Napoleon the First, 35 So. Atl. Q. 298 (I936). s3 Gesetz fiber Volksabstimmung of July I4, I933, ? i, alinea 2 (RGB. I, 479).
56I
government. The term, measure, includes any political act. Although the act prescribes that the plebiscite ought to precede the measure, thus far all three plebiscites were held after the step in question had been taken. An adverse vote was precluded automatically. The simple majority of the votes cast decides the issue even if the statute submitted to the vote amends the constitution. The plebiscite taken on November I2, I933, was to endorse the policy of the government in connection with the withdrawal from the League of Nations.84 The second plebiscite involved the popular opinion on the Succession Act;85 and the third plebiscite was on the repudiation of the Locarno Treaty.86 The percentages of favorable votes for the three plebiscites were respectively 93.I%, 84.2%, and 97.8%. The result of the second plebiscite would seem to indicate considerable disagreement as to the wisdom of conferring absolute power on the Ftihrer. A few remarks on the manipulation of the procedures of polling and counting in order to obtain the desired results must suffice. Clearly recognizing the dangers of the plebiscite which, when honestly applied, allows for demonstration of divergent opinion, the government took great care to minimize the eventual opposition. In the first place national issues were selected which would be endorsed even by opponents of the regime proper. Again the formulation of the question on the ballot paper was skilfully suggestive. The arrangements for polling and counting discouraged the
84The ballot papercontainedan elaborate of the government; statementof the arguments see proclamation of the government of the Reich of October I4, I933 (RGB. I, 730). Techfollowedthe formeract on plebiscitesof January 27, I921 (RGB. I, 79, nically the procedure as amended by the act of December 31, I923 (RGB. I924 I, i) ). The officialballot paperwas
to be markedby "yes"or "no"on the blankcirclespace. The result was publishedas follows:
Total numberof registeredvoters...........
Total votes cast .......................... Y es ..................................... No ...............................
45, 176,713
45,491,575 40,632,628 2, 10,191
Invalidated ballot papers.................. Abstentions from voting................... 85 Total numberof registeredvoters........... Total votes cast..........................
Y es..................................... N o . ...................................
757,756
, 685, x38
45,590,402 43,569,695
38,394,471 4,301,429
Invalidated ballot papers.................. Abstentionsfrom voting...................
873,787 , 980, 607
86The same markingtechniquewas appliedas in the preceding plebiscite. The following figuresweremadepublic:
Total numberof registeredvoters........... Total votes cast..........................
Yes .................44,409,522
45,428,641 44,952,476 542,954 476, 65
No or invalidated ballot papers............ Abstentions from voting...................
562
of invalidatedbalopposition. In particular,the arbitraryinterpretation of violation the of the vote helped and secrecy frequently lotpapers,87 open if to swell the percentageof popularapprovaleven one discountsthe reasonable doubts raised concerningthe truth of the officiallypublishedfigmachinegeared ures. Needless to say that the pressureof the propaganda to its highest pitch succeededin stampedingpublic opinion. By the control of the party the vote was in fact compulsory. Neverthelessat least the majority of abstentionsshould be taken as expressionof opposition. It seems that the extraordinarily high percentagesof votes in favor of the and appargovernmentarousedsuspicioneven amongthe docile Germans as merely ently a strongminorityof voters was not mistakenin appraising a hollow echo a plebiscite which was stripped entirely of its democratic ingredients.
THE LEGISLATIVE PROCESS
A statute passed in the Third Reich is no longer the untrammelled ex-
or by pressionof popularwill manifestedby freely chosenrepresentatives generalpopularvotes. It is ratherthe commandof the leaderunderthe dogmatic assumptionthat the Fiihrer'swisdom monopolizesand anticipates the popularwill. Lawyersunbiasedby the mystical rigamaroleare unable to express this magic or charismaticdoctrinein understandable legal terms. In practice the normal type of legislation is the governmentdecree which is indiscriminately applied to all kinds of legis(Regierungsgesetz) lative acts whether they establish generaland permanentrules of law or regulateonly particularcases of limited application. The customarydistinction betweenformalstatutory law, subjectto parliamentay participation even if the content is no generalrulebut a political measure,and material statutory law, meaning the establishmentof general rules of law which are not necessarilysubject to parliamentary participationis abandoned while the traditionalformalitiesof publication (Verkiindung) and are still observed. Every governmentdecree promulgation(Ausfertigung) is signed by the Chancellorand countersignedby the minister to whose functionsthe act materiallybelongs(federfiihrender Reichsdepartmental
87 In the plebiscite taken on the Locarno Treaty the official ballot paper contained no space for a negative vote, but only for "yes." It was generally presumed by the voters that unmarked ballot papers would be counted as "no" since the official instructions had deliberately avoided any indication of how to reject the proposal. Such papers were, however, counted as affirmative. The number of such papers left blank was never published. Foreign reporters observing the procedure in the polling stations testified to the very considerable number of such manifestations of "no."
THE GERMAN CONSTIT'UTION: 1933-1937
563
minister). Decrees of particularimportanceare signed by the entire cabinet. The legislative jurisdictionof the governmentis exercisedregardless both of the powers re-delegated to the Lander and of the nominally preserved powers of the Reichstag. It has been mentioned already that the distinctionbetweenordinarylaw and organiclaw is completelyobliterated because the EnablingAct and the ReconstructionAct conferredupon the Reich governmentthe amendingpower without limitations. The legislative powerof the cabinet also embracesthe budget and the money borrowing function.88It may be added that the third method of legislationprovided for by the WeimarConstitution,namely a referenduminaugurated by popular initiative, has become obsolete because any combination of voters for political purposesnot sponsoredby the governmentis punishable as unlawfulorganizationof a political party. Summingup the present situation, then, it is obvious that instead of the separationof legislative and executive functions deemed essential for constitutional government there is a complete concentrationof powersin the hands of the government. Concomitantlythe guaranteesof individualor subjective rights of the individualtowardsthe state are a matter of the liberalisticpast and justly so becausepsychologicallythe separationof powersimplies the recognition of individualor subjective rights which are no longer compatible with the totalitarian state.
THE ORDINANCE MAKING POWER
The technique of legislation has undergone a complete change. The statute is no longerimmediately applicablein practice, but indicates only the generalpolicy of the bill in very broad and not infrequentlyflamboyant terms while the detailed regulationand practical application are left to the ordinance making power. Hence, the unprecedented growth of ordinances,both in volume and importance. The line of demarcationbetween legislative and ordinancemakingpowersis moreor less obliterated. In consequencethereof the distinction between "statutory ordinances," establishinggeneralrules of law under explicit delegationby the statute,
88 Weimar Constitution, Arts. 85-2, 87. A special provision covering these powers was inserted in the Enabling Act of 1933 for solving a problem of constitutional law hotly debated prior to the seizure of power by the National Socialists. Particularly the Board of Control of the Public Indebtedness (Reichsschuldenverwaltung) had maintained that for the enactment of the budget and for credit transactions a formal act of the Reichstag was needed and that an ordinance of the Reich President on the basis of Art. 48 was insufficient. On the important constitutional problem of whether certain articles of the Constitution enjoyed "immunity from dictatorial interference" (dikaturfest), see Anschtitz, Die Verfassung des Deutschen Reichs 287, 44I (I933); see also the act of May 5, 1932 (RGB. I, I9I).
564
andmere"administrative thelimitsof whichareto be carefully observed, has becomemeaningless becauseboth emanatefromthe instructions," decree. It wouldbe erroneous to samesource,namelythe government of thelawwassimplified. of thesources thatthereby assume thehierarchy thewideuseof theordinance Onthecontrary making by numerous power and lack of ceris the and authorities confusing, delegated overlapping in life diffiin makes business Germany increasingly tainty jurisdiction cult. of the"national revolutheinitial In viewof thefactthatduring period the Lander were taken,particularly tion" many measures governby a sweeping Actwas no juridical basisexisted, ments,forwhich Indemnity
necessary.89 This act legalizing revolutionary lawlessness may be likened
of self-defence to thefamous act "concerning themeasures systematically

of the state" of July, I934, a unique piece of self-justificationwhich
committed "normalized" the crudeillegalities by Hitlerhimselfand his

associatesin the blood purge of June 30, I934.90
in the person ordinances areat present combined All powers of issuing whowieldsthe old powers of the President andChancellor of the Fiihrer of the NationalSocialist in addition to the newpowers as leader Party.91 of is thaton the basisof a statute Another verycommon type ordinance a delegation orclauseto theeffectthatexecutory whichusually contains a whole or an minbe issued the cabinet as individual dinances may by by areonlythoseindicated In general the limitsof the ordinance ister.92 by of the general policyof the statuteitself,a fact whichmakesthe control the the ordinance-making remembered by courts-occasionally by power NationalSocialist illusory. If ever a courtwere jurisprudence-wholly
bold enoughto invalidatean administrativeact becauseultraviresof the
89Gesetzuiber von Verordnungen of July 3, I934, und Verwaltungsakten Rechtmaissigkeit ? a (RGB. I, 530). 90Gesetzuiber Massnahmen derStaatsnotwehr of July 3, I934 (RGB. I, 529). For details
see Loewenstein, Law in the Third Reich, 45 Yale L. J. 779, 8I0 ff. (I936). 91Gesetz tiberdie Einheit von Partei und Staat of December i, I933 ? 8 (RGB. I, Io060);
of the party. frequentlythe ordinance-making poweris delegatedto the Deputy-Leader 92 Generaland unlimitedpowersto makeordinances are delegatedto the Ministerof the Interiorby the Reconstruction Act ? 5; to the Ministerof Justiceby the Unification of the of Justice Act (Gesetzzur tJberleitung Administration der Rechtspflege auf das Reich) of
February I6, I934 (RGB. I, 9I); to the Prussian Minister President Goring in connection
with the FourYearsPlan of 1936. The Verordnung zur Durchf'hrung des Vier-Jahres-Plans of OctoberI8, I936 (RGB. I, 887) declares of the Four laconically:"I entrustthe execution YearsPlan to the MinisterPresidentGoring.He has the powerto issue generalordersand instructions." administrative Thisimportant strucplan whichcuts deeplyinto the economic is not evendisguised tureof privatecapitalism as a formalact.
565
delegation, a new ordinance could make it valid ex tunc. Nothing illustrates better the legalized arbitrarinesswhich governs legal life in the Third Reich.93
JUDICIAL POWER AND ADMINISTRATION OF JUSTICE
For obvious reasons no room is left for judicial review of statutes. No constitutionalcharterexists by which the legality of the individuallegislative act can be measured. The law as a commandof the Leaderdoes not brook the control involved in judicial review. Any law emanating from the governmentis unchallengeableboth formally and substantially. The same is true of the few acts passed by the Reichstag. The only remaining test of validity is found in the principleof lex posterior legi priori, derogat which guaranteesonce and for all the legality of the subsequentstatute as against a precedingone and the constitution itself. This legal situation could not fail to affect fundamentallythe position of the judiciarybranch within the state. No longer are the judicial functions well protectedagainst the combinedexecutiveand legislativepowers. Independence of judicial administrationis superseded by political subservience to the law as the command of the Leader. The decision of the magistrateor court is to serve exclusively the political will of the state as expressedin the Leader'scommand.94Since the law and the discretionary will of the Fiihrerare identical, the fundamentaltenet of Article 102 of the constitution: "Judgesare subject only to the law" is not formallyaffected because the judge in obeying the law obeys the Leader's command. Yet the position of the judiciaryis deeply uprootedsince the independenceof judges and the life tenure of office has been virtually abrogated by the new regulationsconcerningpublic servants.95Thus the postulate of justice accordingto law is fulfilledto the letter when it is realized that the law is the will of one human man alone and that justice is no longer shaped in conformity with the ethical standards of public opinion, because public opinion is molded by the few at the top. of the organizationof the courts and The most incisive transformation judicial administration consists in the transfer of judicial sovereignty (Justizhoheit) from the Lander to the Reich. In the place of the former
93See in this connection, the act of December 13, I934 withdrawing all lawsuits involving the legality of revolutionary "actions" on the part of public officials or private persons from the ordinary courts and transferring them to the Minister of the Interior who settles them without appeal. Gesetz uiberden Ausgleich biirgerlicher Rechtsstreitigkeiten of December I3, 1934 (RGB. I, 1235); see Loewenstein, Law in the Third Reich, 45 Yale L. J. 779, 807 (I936). 94Meissner-Kaisenberg, Staats- und Verwaltungsrecht im Dritten Reich 282 (I935).
95See p. 566 infra.
566
Departmentsof Justice of the variousLander,at presentdelegatesof the Reich-Ministryof Justice hold officein the capitalsof the formerLander. All judicialofficersare officialsof the Reich and no longerof the Lander.96 In the ordinaryjurisdiction of the courtssurprisingly little was changed. On the other hand not a few special courts, mainly for protectionof the regimeagainstits enemies,have beenestablishedin whichcurtailingof the In addition, the customaryguaranteesof due process is characteristic.97 new feudalistictendenciesof creatingseparate"estates"and guildsof the variousprofessionsand crafts are responsiblefor the emergenceof manifold professionaland "honor"courts.98The most seriouscompetitionof the ordinarycourts, however, arises in the party courts which create a separatelaw for party members.99
CIVIL SERVICE
The politically neutral civil service, together with the army, was the pillar of the Germanstate althoughunderthe Empireit was to some extent an instrumentof the rulingclassesand at least in its higherranks,recruitedits memberslargelyfrom amongthem. The Germancivil service was justly renownedforits administrative efficiencyon the basisof special trainingand generalexaminations. The Republicwas intent upon maintaining the tradition of political neutrality and devotion to the office amongthe publicofficials. The numberof men gainingaccess to the service by meansof politicalpatronagewas not excessive. National Socialism uprootingthe traditiondeliberatelyconvertedthe civil serviceinto an instrument of political domination. Unconditionaldefense of the political aims of the regime now takes precedenceover objective administrative efficiency. The Germanofficialof today swearsloyalty no longer to the abstract notion of the state or the fulfilmentof his duties, but he pledges personalallegianceand unreservedobedienceto the personof the Fiihrer himself. No longer is technical qualificationfor the office the exclusive conditionof appointment,but proofof politicalreliabilityis equallyand in
96Compare the gradual development in the following statutes: i., 2., and 3. Gesetz zur Vtberleitung der Rechtspflege auf des Reich of February I6, of December 5, 1934, and of January 24, I935 (RGB. (I934) I, 9I, 1214; id. (I935) I, 68). 97The most notorious among them is the Peoples Court (Volksgerichtshof), established by the act of April 24, 1933 art. III, ? I-5 (RGB. I, 345); see Loewenstein, Law in the Third Reich, 45 Yale L. J. 779, 8o8 (2936); by the act of April 14, I936 (RGB. I, 369), these tribunals of the star chamber type were transformed into ordinary courts in the terms of the Judicature Act. The special courts (Sondergerichte) were established by Ordinance of March 21, I933 (RGB. I, 136). 98See Loewenstein, Law in the Third Reich, 45 Yale L. J. 779, 8o8, n. I04 (I936). " Id. at 809.
567
The new Public OfficialsAct of January practice even more important.00?? 26, I937, declaresin its first sentence: "The German publicofficialexecutes the will of the state and of the National Socialist Party." The legal pretext of the identity of state and party serves to cover the fact that the once politically neutralcivil service has officiallysurrenderedto the patronage of the party to such an extent that at present no appointment, except for minorofficials,is possible unless the applicant is a tested member of the party and has undergonespecial trainingin the party doctrine. The older officials are rapidly being replaced by party members. The membershipcard as technical qualificationfor office is responsible, according to reports of unbiased observers,for the decay of administrative efficiency in almost all walks of public life. Space again forbids any detailed description of the status of public officials in the Third Reich. It should be noted, however, that persons of non-Germanblood and those married to a partner of non-German blood are no longer eligible for vested rightsof the officialswhichhave contributed office.101 Furthermore, so much both under the Empire and the Republic to the prestige and security of the civil service are no longer recognized. Even the new Public OfficialsAct of I937 which takes great pains to returnat least on paper to the traditionalconcepts of the civil service contains so many political reservationsand pitfalls that securityof tenurecontinues to dependon political conformity. On the other hand the new act benefits from the relentless processof weeding out the politically unreliablepublic officials during the last years. Since judges and academic teachers are equally subjected to the requirementsof civil service it is obvious that political reliability of no category of officialsescapes a continuousscrutiny. Thus one of the main objectives in stabilizing the regime is reached in that public officialsare made political tools. It should be added that the numberof administrative offices and beneficiariesof party and state have inordinately increasedunder the totalitarian Third Reich.
PARTY AND STATE
After the establishment of the leadershipprinciple and the attendant abolition of the separationof powers, perhaps the most momentous constitutional development of the Third Reich is the fusion between party and state, achieved legally by the techniqueof the single party state. The
o00 Gesetz iiber die Wiederherstellung des Berufsbeamtentums of April 7, 1933, ? 4 (RGB. , I75); Gesetz zur Anderung von Vorschriften auf dem Gebiet des allgemeinen Beamten-, des Besoldungs- und des Versorgungswesens of June 30, I933, ? 3 (RGB. I, 433), now consolidated in the Public Officials Act of January 26, 1937 (RGB. I, 39). ,orAct of June 30, 1933, ? Ia alinea 3 (RGB. I, 433); Public Officials Act of I937, ? 25.
568
THE UNIVERSITY
OF CHICAGO LAW REVIEW
rise of the National Socialistmovementfroma smallpoliticalgroupto the strongestparty in the electionsof July, 1932,is too well known to be repeatedhere. The National Socialistsemergedfromthe electionsof March, 1933,with the ambitionof being the exclusivelink between state and nation, fulfillingthe trichotonomous concept of the National Socialistdoctrine. This ambitionwas realizedin the dissolutionand prohibitionof all other political parties,accomplishedimmediatelyafter the ruptureof the coalitioncabinet. Maintenanceof a dissolvedparty or formationof a new the Act on the Unity of Party and party becametreason.'02 Subsequently State of Decemberi, I933,103 establishedby forceof law the monopolyof the National Socialist Party within the state. The party was declareda and given far-reaching publiccorporation privilegesof exemptionfromthe generallaws. The unofficial specialcourtsfor party memberswerelegally recognizedas judicial agencies of the state; the ordinaryauthoritiesof the state werebound to assist party officialsin the exerciseof their functions. A specialDeputy Leaderin party matterswas appointedwho is an memberof the cabinet. The entireareaof the Reichwas covered ex-officio the most elaborateadministrative by machineryof the party, dividedinto provinces (Gau), districts (Kreis) and local units (Ortsgruppe).In addition to the party proper and its affiliatedofficialorganizationssuch as SA (Storm Troopers),SS (Special Guards),National SocialistWomen's and the all encompassingHitler-Youth,the party touches Organization with its countless professionaland social groups of vast dimensionsall layers of the population.104 Perhapsnever beforehas the Germangenius of organizationscored a highertriumph. Those still outside of the party organizationsor of the party controlledprofessionalestates or guilds are miserableoutcasts. The party and its affiliatedorganizationsenjoy the
special protection of the law.105
The most efficientmethod, however,of permeatingthe entire fabricof the state with nationalsocial spirit is that of co-ordinating party officials with the administrativeofficesof the state. The party controls and influences the administrativeauthoritiesby special party superintendents or agents (Amtswalter)who not only supervisethe ordinaryofficials,but
I4, I933 (RGB. I, 479). iiber die Einheit von Partei und Staat of December i, I933 (RGB. I, ioi6). 104 For example, the German Labor Front, The Federation of National Socialist German Lawyers, and the Reich Federation of Public Officials. 10oGesetz gegen heimtiickische Angriffe auf Partei und Staat und zum Schutze der Parteiuniformen of December 28, I934 (RGB. I, I 269) which punishes "utterances likely to undermine the confidence of the people in the political leadership." Manifestations of party symbolism such as uniforms, badges, swastikas, and flags are equally protected.
103 Gesetz
I'lGesetz iiber die Neubilding politischer Parteien of July
569
also perform directly administrative functions.1?6 While thus state and party are linked together it is unavoidable that the interferenceof the party in the administrationresultsin friction and a waste of energy which render the administrative system of the Third Reich both complicated and monstrously extravagant. Perhaps the Germangenius for organization overreachesitself. On the other hand, the powersof the lower party bureaucracyare in actual practice beyond control. The result is a good deal of divergence in administrationwhich the central party authorities are frequently unable to rectify. Similarly the party invaded the dominion of communal government. The Municipal GovernmentAct of I935, another organic statute of the Third Reich,107 evidently attempts to square the circle by proclaiming that "municipaladministrationis to be self governmentwhile at the same time establishing conformity with the political aims of the government form of municipal (Staatsftihrung)." The democratic-parliamentarian government is abolished. The mayor (Biirgermeister)and associates of the mayor (Beigeordnete)are appointedby the governmentof the Land.0?8 For special interests of the party the "delegate commissionerof the National SocialistParty" is appointed by the Deputy-Leaderof the party.109 The delegate-commissioner's consent is necessary for appointment and dismissal of the mayor, the associates of the mayor, and the town counand the enactment of the municipal charter.," Needless to say cilorsiI? the leadershipprinciplealso dominates the municipal sphere and that no trace of popular elections is left. It should be noted, however, that the old pattern of officialhonesty and efficiencyhas been less revolutionized in municipaladministrationthan in the administrationof the state itself because the powerof public opinion,even if it is silent, is more effective in the neighborlyatmosphere.
I06The duplication of frequently overlappingfunctions is revealedfor example in the fact that the Ministerof Nutritionalso holds personallythe officeof the NationalLeaderof Chiefof the FarmBoard and he is simultaneously Farmers the German (Reichsbauernfuhrer) units the identity of state and party is further of the party. In the highest administrative evidencedin that the leadersof the provinces(Gauleiter)hold the officeof Reich Regent or, in Prussia,of ProvincialGovernor(Oberprasident).
I08
107 Deutsche Gemeindeordnung of January 30, I935, ? 2 (RGB. I, 49). Id. at ? alinea 2.
o09
Id. at ? i 8. The ordinance of the Deputy Leader of March 26, I935 (RGB. I, 470) de-
of the party are to be appointedby the provincial crees that the "delegate-commissioners" of the party. leaderof the party (Gauleiter).Delegatesare usually the districtmanagers
'IOId. at ?? 4I, 45, 5I, 54. "I Id. at ? 33.
57o

CITIZENSHIP
Citizenshipin the ThirdReich has been fundamentallyaffectedby the suppressionof the statehood of the Lander,by the fight against the opposition-officially named "enemiesof the state" and last by the racial legislation. When sovereigntypassed from the Landerto the Reich no room was left for citizenshipin the individualLand. At present only uniformnationality as citizens of the Reich exists."2 The Lander authorities handle
mattersconcerningnationalityin the name of and by delegationfrom the Reich. Naturalizationis dependent on the consent of the Minister of Interior.
Naturalization granted between November 9, 1918, and January 30,
mainly for I933, may be revokedif the citizen is deemed "undesirable," In nationalsresidingabroad politicalor racialreasons."3 addition,German may be deprivedof citizenshipif their conduct is deemed detrimentalto Germaninterestsor if they refuseto returnon request. At the same time of the propertyof suchpersonsis permissible. On the basis of confiscation nationalshave been dethese provisionsa considerable numberof German naturalizedafter I918, non-Aryans privedof theircitizenship,particularly and political dissenters. On the other hand, many foreignerswho have served the interests of the party, especially refugees and sympathizers have been rewardedwith citizenship."4 from Austriaand Czechoslovakia The Reich CitizenshipAct of I935,"Ione of the "Niiremberg laws"and again an organicstatute of the ThirdReich, introducedthe subtledistinction between citizens (Reichsbiirger)and nationals (Staatsangehbrige). Only a national of "Germanor racially similarblood who proves by his behaviorthat he is willingand capableof servingloyally the Germannational state" is a citizen."6 Citizenshipis acquiredby getting the formal citizenship-certificate (Reichsbiirger-Brief). Only citizensare qualifiedto exercisefully all political rights. On the other hand, Germansubjectsor nationals are describedas those "who being membersof the protective
12 This internationally as well as nationally important innovation is hidden in the Ordinance of February 5, I934 (RGB. I, 85). 13Gesetz iiber den Widerruf von Einbirgerungen und Aberkennung der Staatsangehbrigkeit of July I4, I933, ? I (RGB.I, 480). "4 Several persons convicted of high treason by Czechoslovakian courts were "elected" to the Reichstag in 1936. A special act of February 27, I936 (RGB. I, I27) admitted naturalized foreigners even to the career of a judge although they need not comply with the internal requirement of training and admision. "5 Reichsbiirgergesetz of September I5, I935 (RGB. I, II46). 116Id. at 2. ?
57r
union of the GermanReich are accordinglyunder special obligations towards the same."117 By this act, all Jews are deprived of citizenship."8 As would be expected the distinction between citizens and nationals serves exclusively the purpose of anti-semitic discrimination. Evidently it was impossible to apply the vague terminology of the statute to any specialcategoryof personsexcept non-Aryans. Hence, all personsare citizens at present who possessed the right to vote when the act was passed."9 To treat Germans,other than Jews, as second-ratecitizens if such a division for political reasonswerefeasiblewould gravely have endangeredthe pretendedunity of the Germannation and widened the existing cleavage betweenparty membersand ordinarycitizens. Thus the much advertised distinctionbetween citizens and nationalsis no more than another stroke of legalized anti-semitism.
IV. CONCLUSIONS
In appraisingthe system of constitutional law which National Socialism has created duringthe first four years of powers, the foreignobserver is naturally influencedby his concepts of legal values and knowledge of history. At this stage, the verdict of history on the Third Reich can hardly be anticipated. PerhapsNational Socialismis to be credited with having inaugurateda new type of government. Perhaps, and this is more likely, the ultimatepurposesof nationalism,a new social stratificationand racial eugenics, will appear ephemeralaims, not deserving the fanatical energy expended on them, when measuredby the attendant loss of permanent values of freedom, human dignity and personal self-realization. At any rate, the speculative nature of such possible evaluations may not preclude the constitutional lawyer from venturing some general conclusions on his own field. Even without a fixed fundamentalcharter the structuralorganization and jointless sysof the Third Reich presentsitself as an all-encompassing to suited serving the totalitem of constitutionallaw which is admirably tarian ambitions of the regime. Although artificially created and forcefully superimposed,it incorporatesmany of the inherent traits of a nation whose legal tradition has been strangely affected by such mutually exclusive concepts as romanticism and positivism. Reverence for the omnipotence of the super-personalstate and subservience to authority
"7 Id. at
?i.
of November 14, legal definitionof the term "Jew"see ExecutoryOrdinance Law laws"see Loewenstein, "Niiremberg I935, ? 5 (RGB. I, I333). On the very complicated in the Third Reich,45 YaleL. J. 779, 796 (I936). 119See, however,note 76 supra.
1X8For the
572
that the contradiction are so deeplyengravedin the Germancharacter becommand"and the majestyof objectivelaw is readilyactween "Leader's cepted. The brief interludeof the Republic between two authoritarian regimeshas evidently left no traces on the consciousnessof the public. Loss of liberty is compensatedfor by the gratifyinginterest of party and state in the well-beingof the humblest citizen. In addition, it must be grantedthat the constitutionaltechniqueof the regimehas thus far been serviceablein the attainmentof the more obvious aims such as practical anti-semitism,restorationof the military traditions,and transferof the vast emolumentsof party and state to the new social stratumof the party recruitedmainly from the dispossessedmiddle classes. Furbureaucracy the regime travels fast on the road to a more remote destinathermore, tion, namely,to whereprivate capitalismand state capitalismconverge. Here perhapsonly spade work is done for the heir apparent,state socialism.
Yet the observercannot but notice some fissuresin the seeminglysolid facade of the Third Reich. It is difficultto see how in the long run the radicaleliminationof the intermediaryagenciesbetween the citizens and the central governmentwill satisfy the inherentneeds of modern states for administrativedecentralizationwhile still preservingpolitical unity. The connectinglinks suppliedby Lander,which were essentiallycultural units, are not missed, at least for the time being, because the party fills the need. But it is open to doubt whetherthe party, admirablyorganized as it is, will in the last analysis respondto the intellectualhabits of a nation whosenationalgregariousness has not preventedsocial multiformity. Wheneverthe singleparty disintegratesor disappears,the inordinatecentralizationmay prove detrimentalto political unity. Anotherdangerlies in the developmentof the party itself. Unlike the state in the developmentof Russianbolshevism,the state in Germany was the to the to surrender compelledby marriage party many of its powers. In the deliberatesubordination of the civil service to the party, another pillar of the constitutional edifice has been hollowed out ready to fall wheneverthe party disintegratesor disappears. Throughthe totalitarian tasks of the state the party has increasednumericallyto such an extent that it is no longera revolutionary elite. On the contraryit has becomea heterogeneousmass of men materially interested in the maintenanceof the spoils. Industrialistsnow wear the party badge as well as the "old in the state is obtainableonly throughthe party, fighters." Sinceinfluence opportunistsoutnumberthe genuineloyalists. What little of ideological ingredientsthe party contained when conqueringthe state as a revolu-
573
tionaryminorityhas undergonethe seductionsof fouryears of undisputed power. Conflictinginterests within the pretended homogeneity are only temporarily compromisedwithout being definitely conciliated. Revolutionary purges too easily become dangerouslyrepetitious. Since the identity of party and state is a fact of which National Socialismis proud, this imperfect integration of the unwieldy elements cannot but ultimately affect the political and administrativeapparatusof the state itself. What appears at the present moment as the strength of the system, namely that it rests on the rock-bedof a mass party may easily become its weakness in spite or because of the ever-increasingnumbersof party beneficiaries. In addition, the artificial division of the nation into neofeudalistic groups, estates, and guilds is not entirely devoid of danger. Thus far this efficient device for totalitarian control of economic and intellectual life has not outgrownits original purpose. Anotherweaknessof the system is visible at the top. Even a genius of Napoleoniccaliberis unableto cope with the technologicaldemandsof the modernstate. In spite of ratherhectic effortsto train future"leaders,"the Third Reich lacks creativenessin renewingthe leadershippersonnelwhose function is to transformthe political impulsesof the Ftihrerinto administrative realities. To maintain the former associates in the key positions of the state for the sake of their political merits in the past has not promoted administrativeefficiency. The Ftihrer has been all the more unwilling to overcome this danger of petrification inherent in all dictatorships because in his code of ethics loyalty stands for professionalknowledge and political reliability for expert advice. No machinery exists for changing the uppermost layer. As a selective process the party by its very nature is decidedly inferiorto parliamentor the civil service. The leadershiphierarchy,with its mystical notions of infallibility discourages rational selection. Finally there is a tangible disadvantage in the constitutional structure of the Third Reich. The leadershipprincipleoperates perfectly from the top down to the base of the social pyramid, but no mechanism exists which carries the opinions and reactions of the masses up to the apex of leadership. While the leaders succeed in moulding the masses by the mechanismof dominationthey are imperviousto influencesmoving from below to the summit. The leadershipprincipleitself causes the complete isolation of the leadersfrom those whom they lead. There is no such thing as proclaimedby National Socialism. Conseas "leadership-democracy" quently during these four years the regime has become rigid and unpliant. The emotional enthusiasm of the masses which is so masterfully
574
handled by the techniciansin rhetoricof the regimestrikes the observer frequently as unreal and ghostly. But even the density and accumulationof such ominousforeshadowings indicate no immediateconsequencesfor the stability of the regime. On the contrary, the congruitybetween the methods of dominationand the national charactermay, in the long run, lead to a normalization of the regimeof which there are at present no visible signs. The essential justificationof any politicalsystem is that of reflectingthe normof the nationof socialforces. Dictatoral traditionsand of maintainingthe equilibrium of normalization. National are Socialismin its usually incapable ships organizationof social present aspect is certainly the most thoroughgoing life, the most omnipotentleviathan,in Hobbes' phrase,knownin modern history. Paradoxicallyit is the most notable feature of the Third Reich in the form of law. The that it has succeededin organizingarbitrariness Germannation, by the mystical alchemyof its spirit adoresorganization and efficiency,but it is doubtfulwhetherorganization for its own sake and as an end in itself without the vitalizationof absolutevalues will be able to withstand the serious strain which the future holds in store.

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Dictatorship and the German Constitution: 1933-1937 Author(s): Karl Loewenstein Source: The University of Chicago Law Review,

DICTATORSHIP AND THE GERMAN CONSTITUTION: 1933-1937

on JanuFTER NationalSocialism had seizedpowerin Germany

1918, the plan, if ever seriously con-

THE UNIVERSITYOF CHICAGO LAW REVIEW

THE GERMAN CONSTITUTION:1933-1937

man officiallaw bulletin, Reichsgesetzblatt.

THE UNIVERSITY OF CHICAGO LAW REVIEW

of the election: statisticalsummary

National Socialist ....................... Social Democrats.......................

German National People's Party.........

........................... Communists CatholicCenterParty...................

4,848,079 4,424, 05 oS ,073,552 432,312 383,969 343,232

83,893 47,743 5,o66

THE GERMAN CONSTITUTION:1933-1937

The pivotal point of the constitutionalstructureof the Third Reich is

THE UNIVERSITYOF CHICAGO LAW REVIEW

the threeso-called"Nuremberg laws"(Reichsflaggengesetz; Gesetzzum Reichsburgergesetz,

THE GERMAN CONSTITUTION:1933-1937

Loewenstein, Erscheiningsformen 56 if. (I93I).

THE UNIVERSITYOF CHICAGO LAW REVIEW

THE GERMAN CONSTITUTION:1933-1937

THE UNIVERSITYOF CHICAGO LAW REVIEW

See note 7 supra.

THE GERMAN CONSTITUTION:1933-1937

suspended on the basis of Article 48 by ordinance of the President of

THE UNIVERSITY OF CHICAGO LAWREVIEW

THE GERMAN CONSTITUTION:1933-1937

THE UNIVERSITYOF CHICAGO LAW REVIEW

von Mecklenburg-Strelitz mit Mecklenburg-Schwerin of Vereinigung

THE GERMAN CONSTITUTION:1933-1937

LAW REVIEW THE UNIVERSITYOF CHICAGO

53Seethe important of the Reichof February FirstOrdinance the reconstruction concerning

THE GERMAN CONSTITUTION:1933-1937

THE UNIVERSITYOF CHICAGO LAW REVIEW

THE GERMAN CONSTITUTION:1933-1937

THE UNIVERSITYOF CHICAGO LAW REVIEW

THE GERMAN CONSTITUTION:1933-1937

THE UNIVERSITYOF CHICAGO LAW REVIEW

cancelledthe parliamentary mandates of the SocialDemocrats; Gesetzgegendie Neubildung

THE GERMAN CONSTITUTION: 1933-1937

. The National Socialist Party is

THE UNIVERSITYOF CHICAGO LAW REVIEW

THE GERMAN CONSTITUTION: 1933-1937

Invalidated ballot papers.................. Abstentionsfrom voting...................

873,787 , 980, 607

45,428,641 44,952,476 542,954 476, 65

No or invalidated ballot papers............ Abstentions from voting...................

LAW REVIEW THE UNIVERSITYOF CHICAGO

A statute passed in the Third Reich is no longer the untrammelled ex-

THE GERMAN CONSTIT'UTION: 1933-1937

LAW REVIEW THE UNIVERSITYOF CHICAGO

of self-defence to thefamous act "concerning themeasures systematically

committed "normalized" the crudeillegalities by Hitlerhimselfand his

THE GERMAN CONSTITUTION:1933-1937

THE UNIVERSITYOF CHICAGO LAW REVIEW

THE GERMAN CONSTITUTION: 1933-1937