The Coming of the Third Reich (77 page)

II

For all his electoral successes, there has never been any doubt that Hitler came into office as the result of a backstairs political intrigue. ‘The Germans’ did not elect Hitler Reich Chancellor. Nor did they give their free and democratic approval to his creation of a one-party state. Yet some have argued that the Weimar Republic destroyed itself rather than being destroyed by its enemies: a case of political suicide rather than political murder.
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Of the weakness of the Republic’s polity in the supreme crisis of 1930-33 there can be little doubt. The Republic’s fatal lack of legitimacy caused people to look all too readily to other political solutions for Germany’s ills. But these ills were not just of the Republic’s own making. Crucial to the whole process was the way in which democracy’s enemies exploited the democratic constitution and democratic political culture for their own ends. Joseph Goebbels was quite explicit about this when he publicly ridiculed:

The stupidity of democracy. It will always remain one of democracy’s best jokes that it provided its deadly enemies with the means by which it was destroyed. The persecuted leaders of the NSDAP became parliamentary deputies and so acquired the use of parliamentary immunity, allowances and free travel tickets. They were thus protected from police interference, could allow themselves to say more than the ordinary citizen, and apart from that they also had the costs of their activity paid by their enemy. One can make superb capital from democratic stupidity. The members of the NSDAP grasped that right away and took enormous pleasure in it.
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There was no denying the Nazis’ supreme contempt for democratic institutions. But it is in the nature of democratic institutions that they presuppose at least a minimal willingness to abide by the rules of democratic politics. Democracies that are under threat of destruction face the impossible dilemma of either yielding to that threat by insisting on preserving the democratic niceties, or violating their own principles by curtailing democratic rights. The Nazis knew this, and exploited the dilemma to the full in the second phase of the coming of the Third Reich, from February to July 1933.

Since the failure of his beer-hall putsch in November 1923, Hitler had always claimed that he was going to come to power by legal means. Indeed, he had said as much on oath in court. After 1923, he knew that a violent
coup d‘état
along the lines of the October Revolution in Russia in 1917, or even the threatened ‘march on Rome’ which had propelled Mussolini into Prime Ministerial office in Italy in 1922, would not work. At every point, therefore, Hitler and his associates sought a legalistic fig-leaf for their actions. All along, they avoided as far as possible giving their opponents the kind of opportunity that the Social Democrats had taken up in fighting Papen’s Prussian coup of July 1932 through the courts. The Social Democrats had done this with a certain degree of legal success, though politically their court action had proved completely futile. Avoiding this precedent was why, for instance, Hitler placed so much importance on the Reichstag Fire Decree and the Enabling Act. It was why Goring enrolled the brownshirts and SS as auxiliary police in Prussia rather than simply letting them go on the rampage without so much as a pretence of legal cover for their actions. It was why the Nazi leadership insisted on implementing its initial wave of policies through laws approved by the Reichstag or sanctioned by Presidential decrees. And the strategy of the ‘legal revolution’ worked. Hitler’s constant reassurances that he would act legally helped persuade his coalition partners and his opponents alike that the Nazis could be dealt with by legal means. Legal cover for the Nazis’ actions allowed civil servants to draft the decrees and laws they demanded, even where, as with the Civil Service Act of 7 April 1933, they attacked the very principles of neutrality on which the civil service was based by requiring the dismissal of Jewish and politically unreliable bureaucrats from their positions. For civil servants, state employees and many others, the measures by which the Nazis seized power between the end of January and the end of July 1933 seemed irresistible because they appeared to carry the full force of the law.

Yet they did not. At every point in the process, the Nazis violated the law. In the first place, they contradicted the spirit in which the laws had been passed. Article 48 of the Weimar constitution, in particular, which gave the President the power to rule by decree in time of emergency, had never been intended to be the basis for any more than purely interim measures; the Nazis made it into the basis for a permanent state of emergency that was more fictive than real and lasted in a technical sense all the way up to 1945. Nor had Article 48 been intended to introduce measures as far-reaching as those passed on 28 February 1933. It was indeed unfortunate that President Ebert had made such liberal use and broad application of Article 48 earlier in the Republic’s history, and doubly so that Reich Chancellors Brüning, Papen and Schleicher had relied on it so heavily in the crisis of the early 1930s. But even that paled into insignificance beside the drastic curtailment of civil liberties ordered on 28 February. Nor was the decree meant to be used by a Chancellor applying the President’s rubber stamp. Hitler ensured in his negotiations with Hindenburg in January 1933 that it would be.
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The Enabling Act was even more clearly a violation of the spirit of the constitution, as was the abolition of free elections that followed. Yet the likelihood of this happening was scarcely a secret, since the leading Nazis clearly proclaimed during the election campaign that the election of 5 March would be the last for many years to come.

The Nazis did not just violate the spirit of the Weimar constitution, they also transgressed against it in a technical, legal sense too. The decree of 6 February 1933 that gave Goring control over Prussia clearly broke the findings of the State Court in the lawsuit brought against Papen by the deposed Social Democratic minority government in Prussia. The Enabling Act was legally invalid because Goring, as President of the Reichstag, did not count the elected Communist deputies. Though the two-thirds majority did not require them to be counted, refusing to recognize their existence was an illegal act. Moreover, the Act’s ratification by the Federal Council, the upper chamber of the legislature, representing the federated states, was irregular since the state governments had been overthrown by force and were therefore not properly constituted or represented.
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These were more than mere technicalities. But they were far outdone by the massive, sustained, and wholly illegal violence perpetrated by Nazi stormtroopers on the streets that already began in mid-February, reached new levels of intensity after the Reichstag fire, and swept across the country in March, April, May and June. The status of many of the perpetrators as auxiliary police in no way legalized the acts they committed. After all, putting someone into a policeman’s uniform does not give him a licence to commit murder, to ransack offices, to confiscate funds, or to arrest people, beat them up, torture them and imprison them in hastily erected concentration camps without trial.
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German judicial authorities were, in fact, fully aware of the illegal nature of Nazi violence even after the seizure of power. The Reich Ministry of Justice made strenuous efforts to have the mass arrests of the first half of 1933 subjected to a formal legal process; its intervention was simply disregarded. Throughout 1933 there were cases of state prosecutors bringing charges against brownshirts and SS men who had committed acts of violence and murder against their opponents. In August 1933 a special prosecution office was set up to co-ordinate these efforts. In December 1933 the Bavarian state prosecutor attempted to investigate the torturing to death of three prisoners in Dachau concentration camp, and when he was rebuffed, the Bavarian Minister of Justice announced his determination to pursue the matter with all possible vigour. The Reich Minister of the Interior complained in January 1934 that protective custody had been misused in many cases. It was only in April 1934 that a set of regulations was passed detailing who was entitled to arrest people and put them into ‘protective custody’ and what should happen to them when they got there. In the same year, however, the state prosecutor brought charges against twenty-three stormtroopers and political police officials at Hohnstein concentration camp in Saxony, including the camp commandant, for the torture of inmates, which, Reich Minister of Justice Gürtner emphasized, ‘reveals a brutality and cruelty in the perpetrators which are totally alien to German sentiment and feeling’.
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Many of those who attempted to prosecute acts of torture and violence committed by Nazi stormtroopers were themselves fully paid-up Nazis. The Bavarian Justice Minister who tried to prosecute acts of torture in Dachau in 1933, for example, was none other than Hans Frank, later to acquire a brutal reputation as Governor-General of Poland during the Second World War. Nothing came of these legal initiatives, which were all frustrated by intervention from above, by Himmler or ultimately by Hitler himself.
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An amnesty for crimes committed in the ‘national uprising’ was passed as early as 21 March 1933, quashing over 7,000 prosecutions.
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Everybody, including not least the Nazis, was aware throughout 1933 and 1934 that the brutal beatings, torture, maltreatment, destruction of property and violence of all kinds carried out against the Nazis’ opponents, up to and including murder by the brown-shirted stormtroopers of the SA and the black-uniformed squads of the SS, were in flagrant violation of the law of the land. Yet this violence was a central, indispensable part of the Nazi seizure of power from February 1933 onwards, and the widespread, in the end almost universal fear that it engendered among Germans who were not members of the Party or its auxiliary organizations was a crucial factor in intimidating Hitler’s opponents and bringing his sometimes rather unwilling allies into line.
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There can be no doubt, finally, about the ultimate responsibility of Hitler and the Nazi leadership for these illegal acts. Hitler’s contempt for the law and the Weimar constitution had been made clear on many occasions. ‘We enter the legal agencies and in that way will make our Party the determining factor,’ Hitler told the court at the 1930 army officers’ trial in Leipzig. ‘However, once we possess the constitutional power, we will mould the state into the shape we hold to be suitable.’
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It was important, he told the cabinet in the immediate aftermath of the Reichstag fire, not to get too hung up on legal niceties in pursuing the supposed Communist perpetrators. Hitler’s whole rhetoric, his whole posture in the first months of 1933 amounted to a continual encouragement of acts of violence against the Nazis’ opponents. His appeals for discipline almost invariably went hand-in-hand with more generalized rhetorical attacks on their opponents which rank-and-file stormtroopers took as licence to continue the violence unabated. Massive, co-ordinated actions, like the occupation of the trade union offices on 2 May, persuaded ordinary brownshirts that they would not get into too much trouble if they acted on their own initiative on other occasions in the same spirit. And indeed they did not.
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Most crucial of all was the fact that Hitler and the Nazis at every level were very much aware of the fact that they were breaking the law. Their contempt for the law, and for formal processes of justice, was palpable, and made plain on innumerable occasions. Might was right. Law was just the expression of power. What counted, in the words of one Nazi journalist, was not the ‘mendacious hypocrisy’ of Germany’s legal and penal systems, but ‘the
law of power
, that incorporates itself in the blood ties and military solidarity of one’s own race ... There is neither law nor justice in itself. What had succeeded in asserting itself as “law” in the struggle for power has to be protected, also for the sake of the victorious power.’
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III

The illegal nature of the Nazi seizure of power in the first half of 1933 made it, in effect, into a revolutionary overthrow of the existing political system, and indeed the rhetoric of the ‘National Socialist Revolution’ was designed not least as an implicit justification of illegal acts. But what kind of revolution was it? The conservative administrator Hermann Rauschning, who began by working with the Nazis but by the late 1930s had become one of their fiercest and most persistent critics, described it as a ‘nihilist revolution’, a ‘directionless revolution, a revolution merely for revolution’s sake’. It destroyed all social order, all freedom, all decency; it was, as the title of the English edition of his book claimed, a ‘revolution of destruction‘, nothing more.
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But in his passionate diatribe, that ended with a clarion call for the restoration of true conservative values, Rauschning was doing little more than using ‘revolution’ as a rhetorical bludgeon with which to beat the Nazis for their overturning of the order he prized. Other revolutions, whatever Rauschning may have thought, delivered more than mere destruction. How then did the Nazi Revolution compare with them?

On the face of it, the Nazi Revolution was not really a revolution at all. The French Revolution of 1789 and the Russian Revolution of 1917 swept away the existing order by force and replaced it with something that the revolutionaries regarded as entirely new. Typically trying to have it both ways, by contrast the Nazis both used the rhetoric of revolution and claimed that they had come to power legally and in accordance with the existing political constitution. They took few concrete steps to abolish the central institutions of the Weimar Republic or to replace them with something else—the eventual abolition of the Presidential office in 1934 was a rarity in this respect. Instead, they preferred to let them atrophy, like the Reichstag, which barely met after 1933 and then only to hear speeches by Hitler, or the Reich cabinet, which itself also eventually ceased to meet.
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On the other hand, what the conservative elites wanted - the staging of a genuine counter-revolution with the aid of the National Socialists, culminating in a restoration of the Wilhelmine Reich, or something very much like it, with or without the person of the Kaiser on the throne - failed to materialize as well. Whatever else happened in 1933, it was not a conservative restoration. The violence that was central to the seizure of power gave it a distinctly revolutionary flavour. The Nazi rhetoric of ‘revolution’ was virtually unchallenged after June 1933. Does it have to be taken at face value, then?
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