"Non-Germans" Under the Third Reich (15 page)

The wholesale rejection of the liberal legal system resulted simultaneously in the rejection of all rights of liberty and equality in the Nazi state. At issue now was merely whether the Weimar Constitution, with its guarantee of these rights, was already annulled with the Nazi seizure of power on January 30, 1933,
⁸¹
or not until later, at the time of the corresponding positive-law repeal (constitutional amendment).

The Reich president’s Decree for the Protection of People and State dated February 28, 1933,
⁸²
was seen above all as such an act of repeal, for although it
temporarily
suspended constitutional rights, it was generally considered the “end of subjective public rights,”
⁸³
in addition to containing other provisions limiting constitutional rights.
⁸⁴
The excuse for the proclamation of this decree was the Reichstag Fire of February 27, 1933, but in reality it was a matter of buttressing the National Socialist dictatorship for the long term. This is quite plainly evidenced by a decision of the Berlin State Appellate Court of November 1, 1933, according to which the decree deliberately instituted a state of emergency by repeal of constitutional laws, in order to permit the National Socialist state to become a reality.
⁸⁵

Disregarding the question of formal legality (“today’s existing legislation has made use of the formal procedure of the Weimar Constitution … only for the sake of outward orderliness and peace [legality]; but it does not derive its justification therefrom”),
⁸⁶
it was clear, both in theory and in practice, that constitutional rights and the constitution itself had lost their meaning in the Nazi state, whether because they were “in essence” incompatible with National Socialism; because they had lapsed at the time of the “seizure of power” and/or the decree of February 28, 1933,
⁸⁷
or were considered to have been “overcome” by the “national community”;
⁸⁸
or because they were to be interpreted in the spirit of the “National Socialist worldview.”
⁸⁹
The continued validity of the Weimar Constitution as simple law was also negated in cases in which it was incompatible with the National Socialist conception of the state.
⁹⁰
Breaches of and amendments to the constitution even in the absence of formal empowerment were declared to be legitimate under the most varied justifications imaginable;
⁹¹
in court rulings it was determined that the government was even permitted “to carry out reforms of constitutional law … by means of administrative directives and other measures of all kinds”;
⁹²
certain courts even viewed the party platform of the NSDAP as a kind of legal authority (“constitutional law”) justifying breaches of the constitution and entertained the possibility of replacing the Weimar Constitution with said platform.
⁹³
In any case, to the extent that constitutional rights were not seen as having been formally
annulled
(by the decree of February 28, 1933), the greater part of the literature accepted as a subsidiary principle (in the words of Schmitt) “the simple verdict that the Weimar Constitution is no longer in force.”
⁹⁴
This of course applied not merely to those constitutional rights that were expressly suspended by the decree of February 28, 1933 (personal liberty, freedom of expression, etc.), but also to those rights not expressly listed therein (for instance, the guarantee of due process and a fair trial, the principle of
nulla poena sine lege
, freedom of trade and profession, freedom of religion, and the employee’s right of codetermination)
⁹⁵
—up to and including the supposedly “dictatorship-proof” rights that, according to the constitution, were in no case (not even by means of Reich legislation) susceptible to amendment.
⁹⁶

Another (and most important) principle to be overturned was that of general equality, which was a right not subject to amendment or abridgement by legislative act (art. 109).
⁹⁷
The “liberal ideas of equality” were now, in the common view, replaced by the “
völkisch
idea,” a substitution that resulted in a fundamental shift in the relationship between
Volksgemeinschaft
(the state) and the individual. There could be no more talk of the right to equal treatment under law. Civil rights and guarantees were now replaced by the total incorporation and integration of the individual, in thought, action, and feeling, into the
Volksgemeinschaft
(national or people’s community),
⁹⁸
the contemporary term for which was
the total state
, in the sense of absolute “dominance over the soul.”
⁹⁹
And it was in that sense, too, that this concept was introduced into the administration of justice.
¹⁰⁰

This “integration and incorporation” of the individual into the
Volksgemeinschaft
meant not only the obligation of the former to the state (as scholarly opinion would have it) but, in essence, the destruction of the individual as a legal personality.
¹⁰¹
National Socialist doctrine, to be sure, did not follow National Socialist propaganda, which denied altogether the right or duty of the individual to existence,
¹⁰²
or the opinion of Hitler and his côterie that the individual personality only achieved its “actual value” and development within the
Volksgemeinschaft
.
¹⁰³
Yet the result was fundamentally the same when subtle juristic formulations were used to reconcile “community” and “individual,” for example, by elevating the individual, as it were, onto a higher level by virtue of his membership in the community;
¹⁰⁴
and likewise when even the theoreticians of the
total state
declared that, even within the confines of “community,” the individual had to retain some scope or latitude for free development, since National Socialism set such store by the responsible (leader) personality.

As a result, therefore, the new status of the individual in the
Volksgemeinschaft
no longer had the least bit to do with any kind of
legal
status as a defense against state or government intervention. Attempts to salvage individual rights using the exception-to-the-rule mechanism in jurisprudence, that is, by the presumption that equality, though existing “in principle,” was always subordinate
¹⁰⁵
to the requirements of the
Volksgemeinschaft
(community-dependent rights of the individual), represented merely a gloss on the true situation: that individual or personal rights had become fundamentally untenable and were now, at best, interpreted (but not precisely defined) as the “privileges of the individual” (which could be suspended at any time).
¹⁰⁶
More courageous souls than those constitutional law scholars who were still under the influence of the ethos of the liberal era openly announced the way in which the position of the individual was now to be conceived: “membership,” total absorption by the
Volksgemeinschaft
, took the place of personal, subjective rights. “Organic, holistic thinking,” embodied in the
Volksgemeinschaft
, “deep inner experience” rather than “empty abstraction,” replaced the “unlucky star of individualism.” Within this “organic thinking,” the individual was by no means a nullity, as in the “leveling collective,” but a “member of the community.”
¹⁰⁷

At bottom, however, no one quite knew exactly what “the legal status of the national comrade” or “privileges within the national community”
¹⁰⁸
were actually supposed to mean in concrete terms once equality had been destroyed as an individual right.

There were partial attempts to salvage the concept of equality by divesting it of its personal content and reformulating it as an
objective or impersonal
right, as an “essential structural element” of the constitution (“fundamental
völkisch
order”).
¹⁰⁹
This “objectification” was justified both by means of historical arguments and with an eye toward the constitutional systems of other nations where equality was not guaranteed as an individual subjective right but where the principle of equality obtained merely as an impersonal constitutional principle.
¹¹⁰
With the aid of this seemingly objective legal comparison and a reinterpretation of the concept of equality, there were those writing in the professional literature who propounded in all seriousness the belief that equality “as such” had not really been eliminated from the Nazi state but “merely” given a different
content
.
¹¹¹
This construct, however, overlooked the fact that “objective [impersonal] equality” could exist only in a state that was pledged to its rigorous observance,
¹¹²
whereas, under the Nazi system, such an obligation on the part of the state to respect objective constitutional principles either was precisely what was denied
¹¹³
or else was recognized only in respect to any “positively constructive forces within the
Volk
.”
¹¹⁴
Members of another school, in turn, proposed the idea that the state was committed to a “meaningfully just order of values,”
¹¹⁵
which, however, was an empty catchphrase, since it was possible to define said scale or order of values only from the standpoint of the primacy of the racially defined national community.

But the actual meaning of
völkisch
equality was approached, in the literature, by a different path; by way, so to speak, of its antithesis. Indeed, one could say that the new “equality” could be defined only from the point of view of its opposite, that is, from the standpoint of the common
civic duties and obligations
—in itself sufficient proof that National Socialism was incapable of conceding any independent legal status whatsoever to the individual. Yet as soon as it came time, as in this case, to talk of integration, duties and obligations, liabilities, and thus of the repressive mechanism peculiar to National Socialism, however disguised by deliberate mystifications (such as Hitler’s image of the “mystical triangle”: “integration” into the “Labor Front” [
Arbeitsfront
], into the “Professional Estate” [
Berufsstand
], and into the “Party”)
¹¹⁶
—then it suddenly became quite clear what was meant by “equality of national comrades (
Volksgenossen
).”
¹¹⁷
The mists of obscure terminology abruptly lifted; objective, impersonal “equality” once again became subjective, personal, focused on the individual. But the meaning and content of this new “equality” was the role of the individual as a
person subject to obligations:
his “rights” consisted of an equal distribution of burdens; and the individual was of concern solely in this regard. Now there was no more talk of rights or, if so, then as lip service only; “in the
völkisch
Reich” the fundamental obligations took precedence “over rights.”
¹¹⁸
Taking their cue from Hitler (“equal rights can … never be anything more than the cheerful acceptance of equal obligations”),
¹¹⁹
the theoreticians of public and constitutional law talked expressly of an “all-encompassing socialism of obligations, never of rights.”
¹²⁰
The rights of the individual thus metamorphosed into the
right
of all
to the same obligations
,
¹²¹
which found their expression in countless legally mandated but also “voluntary” duties,
¹²²
whose complete fulfillment was expected by the state “in reliance upon the German soul.” Nonfulfillment of such “voluntary duties” was considered a violation of the common obligation to demonstrate fidelity to the Führer and could result in severe disciplinary or criminal sanctions.
¹²³

c. The National Socialist Concept of
Völksch
Inequality: The Principle of Special Law

If the redefinition of
völkisch
equality in terms of constitutional and administrative theory was achieved with the utmost difficulty, how much more intractable was its necessary corollary,
völkisch
inequality, in regard to which the theorists either are almost entirely silent or else content themselves with a few vague insinuations. To be sure, it was possible to make a theoretical case that only racially equal “national comrades” enjoyed equal legal status, whereas all those of unequal or dissimilar race neither enjoyed equal rights nor were equal in the eyes of the law. Thus, for example, the administrative leadership (the head of the Reich Chancellery) openly declared that the “blood-determined” inequality among humans in all aspects of their “thought, feeling and action” resulted directly in their legal inequality (“just inequality”).
¹²⁴
The details of how this was to be accomplished and justified, however, no one was prepared to state with any degree of clarity. True, Hitler himself had plainly asserted that there was no such thing as equal rights for all,
¹²⁵
but he provided no details as to how the concept of
völkisch
inequality should be put into practice. And the fourth, fifth, and ninth planks in the party platform of the NSDAP (equality of rights and obligations only for persons “of German blood”) indicated that discrimination (“legislation regulating aliens”) against people of other races (Jews and Gypsies) would generally be permitted but also failed to give more particulars. Similarly, the leading administrators barely took the trouble to look for “juristic” justifications, resorting instead to openly political arguments. Thus, according to the official commentary on the Law for the Protection of German Blood and German Honor of September 15, 1935 (the so-called Blood Protection Law [
Blutschutzgesetz
]), drafted by highly placed civil servants in the Reich Ministry of the Interior, the spirit of corruption and demoralization attributed to the Jews, their “assaults on German women,” and their “presumption” were the reasons put forward for “legal segregation” (unequal treatment) of Germans and Jews.
¹²⁶
Bernhard Lösener, who worked in the Department of Racial Affairs in the Reich Ministry of the Interior, spoke of the “fundamental recognition of the inequality of human races, in contrast to the smarmy liberal slogan touting the equality of anything possessing a human visage.”
¹²⁷
Even after the first concrete results of
völkisch
inequality became apparent, immediately after the Nazi seizure of power (purging of the Civil Service and the bar of persons of foreign race), the academic literature reveals only a few statements concerning the nature and scope of this new inequality, despite the enthusiastic acclaim with which the new state and its governmental order had been hailed.