THE failure of the Kapp putsch in 1920 and of the 1923 Munich putsch taught the National Socialists that in our world the coup d’état is not the proper technique for seizing political power. Curzio Malaparte wrote a widely read book in defense of the coup d’état.1 He argued that the way to bring about a successful revolution is for a small group of shock troops and highly trained conspirators to seize the key places in the public services. As proof, he cited the Russian Revolution of 1917, the Kapp putsch, the Fascist seizure of power in Italy, the coups of Pilsudski in Poland and Primo de Rivera in Spain. His choice of examples could hardly have been worse. The success of the Bolshevik revolution may be attributed in part to Malapartian practices, but even more to the fact that the Kerensky government was weak and Russian society was in full disintegration. The Kapp putsch was a failure; Mussolini’s march on Rome, a myth. Related and equally invalid is the military theory that a highly skilled army, equipped with the most advanced weapons, is necessarily superior to a large mass army. The German victories in the present war have been the result of the immense military superiority of a mass army combined with highly mechanized shock-troop divisions—and also of the moral decomposition of their opponents.
Unfortunately for Malaparte, in 1932 he predicted that Hitler, whom he labelled ‘a would-be leader,’ ‘merely a caricature of Mussolini,’ would never come to power because he relied exclusively on opportunist parliamentary methods. The National Socialists were right, of course, and Malaparte wrong. In his commemoration speech of 8 November 1935, Hitler himself admitted the error of his early putsch: ‘Fate has meant well for us—It did not let an action succeed which, had it succeeded, must finally have foundered because of the inner immaturity of the movement and its faulty organizational and spiritual foundations. We know this today. Then, we acted with courage and manhood. Providence, however, acted with wisdom.’
After the Munich fiasco, the National Socialist party became ‘legal.’ It solemnly promised not to incite to high treason or to a revolutionary overthrow of the constitution. As a witness at a trial of National Socialist Reichswehr officers charged with high treason, Hitler on 25 September 1930 took his famous ‘purity oath.’ The Storm Troops (S. A.) became harmless sport and parade bodies. Few political parties insisted more loudly than the National Socialists on the preservation of civil liberties and democratic equality.
Every device of parliamentary democracy, every liberal institution, legal provision, social and political tie became a weapon against liberalism and democracy; every opportunity was taken to heap abuse on the inefficiency of the Weimar Republic. Following is a modest selection of charges against liberalism and democracy drawn solely from the writings of National Socialist professors (the invective of party orators can be left to the imagination):
The liberal state is ‘neutral and negative,’ mere machinery; to use Lassalle’s phrase, it is ‘a night watchman’s state.’ Therefore it is ‘without substance’—unable to reach decision or to determine what is good or bad, just or unjust. The idea of freedom has degenerated to the point of anarchy. Disintegration and materialism are rampant. And the Marxist ideal, which is only a variation of liberalism, is no better.
Democracy is the rule of the ‘unorganized mass,’ an aggregate of Robinson Crusoes rather than of people. Its principle is ‘nose-counting,’ and its parliaments, dominated by private groups, are arenas of brute struggles for power. The law serves only private interests; the judge is nothing but a machine. Liberalism and law are in fact mutually exclusive, though they have been temporarily allied through expediency. In sum, liberalism and democracy are monsters, ‘negative’ Leviathans, one might say, so strong that they have been able to corrupt the racial institutions of the Germanic heritage.
It would be wrong, however, to assume that during the ‘twenties and early ‘thirties National Socialism simply set out to prove democracy worthless or to propose a substitute: monarchy or dictatorship or anything else. Quite the contrary, it paraded as the salvation of democracy. Carl Schmitt, the ideologist of this sham, developed it as follows.
Weimar democracy contains two elements, one democratic and the other liberal (rechtsstaatlich), not to be confused with each other. Democracy applies the principle that there is an identity between the rulers and the ruled. Equality is its substance, not liberty. Equality can exist only within a given community, and the basis of both community and equality may vary. We may have equality derived from the physical or moral homogeneity of the community, like the virtue Montesquieu called the principle of a republic. Or it may stem from a religious solidarity, such as lay at the base of the democratic ideology of the Levellers in the Puritan revolution. Ever since the French Revolution, the basis has been national homogeneity. Rousseau, who formulated this notion and built upon it the only truly democratic system, held that national homogeneity meant unanimity.2 His conception of the general will therefore does not admit political parties, for parties, as their very name indicates, express only partial wills. A truly democratic system will express the complete identity between the rulers and the ruled.3
Parliamentarianism is not identical with democracy but is merely one of its historical forms. The basic principles of parliamentarianism are public debate, separation of powers, and the universality of law. Debate requires the agencies of political power to engage in discussion as a means of arriving at the truth. Public debate allows the body of citizens to check up on and control their agents. But, says Schmitt, practice no longer conforms to theory. Parliamentary discussion is today nothing more than a device for registering decisions previously reached on the outside. Every deputy is bound by rigid party discipline. He would not dare let himself be swayed by an opponent. The debate is a fraud. The speeches are made for the record. Since the major decisions are reached in secret committees or in informal negotiations among the controlling groups, even the publicity of the debate is a sham.
The principle of the separation of powers restricts parliament to legislation—in other words, to the enactment of abstract general rules. Again practice has run away from the theory. Parliament is no longer exclusively a legislator; it is even more an administrator, and an inefficient one at that. In the era of monopoly capitalism, general laws have become devices to conceal individual decisions. The homogeneity of the people is almost nonexistent. The pluralistic system has substituted many loyalties for the one basic loyalty to the nation. The polycracy, that is, the conjunct body of independent public agencies (social-insurance institutions, control boards, publicly owned corporations, and so forth), subject to no parliamentary supervision, has destroyed the unity of political decisions. It has torn many of the vital limbs from the body politic. The federative principle, by protecting particularist interests, has made a mockery of the idea of the sovereignty of the one people.
Civil liberties and inalienable rights, finally, negate democracy. Rousseau had already indicated this point, at least by implication; for the social contract theory means that the citizen surrendered his rights upon entering into the contract. The traditional personal and political liberties were a product of competitive capitalism. That era has now passed and capitalism has entered a phase of interventionist, monopoly capitalism and collectivism. Since freedom of trade and freedom of contract have disappeared, their corollaries, freedom of speech and assembly, freedom of press and of trade-union organization, have become meaningless.4
By an interesting paradox, this anti-democratic analysis, designed to minimize the meaning of fundamental rights, enormously over-evaluated them at the same time, transforming them into bulwarks for the defense of private property against state encroachment, and assigning them a constitutional function completely alien to the German tradition.5 Innumerable books, pamphlets, and speeches denounced parliamentary institutions for their inefficiency, their undemocratic character, their corruptibility. Bureaucratic ideology was the immediate beneficiary. The judiciary was raised to a supreme political function and, for all the attack on the pluralistic, polycratic, and federative causes of disunion, any criticism of the independent political status enjoyed by the army was scrupulously avoided. Fundamental rights were denounced as incompatible with democratic philosophy, while the fundamental rights of property and equality were given an extent and depth they never had before.
The logical outcome of this deliberate manœuvre was a demand for a strong government, culminating in the slogan, ‘All power to the president.’ The president, it was claimed, is a truly democratic institution: he is elected by the people. The only true pouvoir neutre et intermédiaire, he should have the legislative and executive powers concentrated in his hands. The president’s neutrality is not mere lack of color, but true objectivity above the petty quarrels of the numerous interests, public agencies, and states.6
The underlying sentiment that came forth was thus the decisionism of Carl Schmitt,7 the demand for action instead of deliberation, for decision instead of evaluation.
Decisionism rests on a peculiar, yet highly attractive, doctrine of the nature of politics, strongly resembling the revolutionary syndicalism of Georges Sorel. Politics, Schmitt declared, is the relation of friend to foe. The foe is in the last resort anyone who must be exterminated physically. Every human relation can become a political one in this sense, for every opponent can become a foe subject to physical extermination. The New Testament’s command that one should love even one’s enemies refers only to the private foe, the inimicus, not to the public foe, the hostis.8 This is a doctrine of brute force in its most striking form, one that sets itself against every aspect and act of liberal democracy and against our whole traditional conception of the governance of law.
Opposing theories were either without influence or else they played into the hands of the anti-democratic thesis. The communists, for example, denounced the constitution as a veil for capitalist exploitation and as the political superstructure of a monopoly capitalist economy. As a matter of fact, the Weimar constitution concealed nothing. Its compromise character, the bargaining of the interests, the independent status of the Reichswehr bureaucracy, the openly political role of the judiciary were all clearly discernible. Constitutional theory and practice disclosed the weakness of the democratic forces and the strength of their opponents. By the same token, they revealed that the Weimar constitution owed its existence far more to the tolerance of its enemies than to the strength of its supporters. The lack of any accepted constitutional doctrine, even if it had been merely a camouflage and pure fiction, and the consequent public character of the fundamental antagonisms were precisely the factors that rendered the constitution transitory and prevented the formation of one solid loyalty.
Socialist constitutional theory failed to evolve a specifically socialist doctrine. It agreed with Carl Schmitt in condemning the Weimar constitution for its lack of decision.9 It did not even grant the constitution a compromise quality, but maintained that the incompatible interests and positions stood side by side without any integration. Every constitution enacted at a turning point of history, the socialists reasoned, must state a program of action and evolve a new order of society. Since the Weimar constitution had no aims of its own, it admitted every conceivable value-system.
Their destructive criticism challenged the socialists to reformulate the value-system of the Weimar democracy. So they developed the doctrine of a social Rechtsstaat that combined the heritage of civil rights, legal and political equality with the requirements of collectivism.10 Stressing constitutional provisions for socialization of industry and trade-union recognition, they demanded the establishment of an economic constitution that would provide for an equal share of labor representation. The social Rechtsstaat was thus the rationalization of labor’s demand for an adequate share in the political life of the nation. As a political theory, it was admittedly transitory (along with the corresponding doctrine of economic democracy), for the social Rechtsstaat was conceived merely as the first step toward a fully socialized society. And it had as little effect as the rest of Social Democratic and trade-union policy.
Still another opponent of decisionism was the so-called Austrian school: the ‘pure science of law.’ State and law it declared to be identical provinces. There is but one law, the law of the state. Since every political phenomenon must be explained in terms of law, every political form is a Rechtsstaat, a state based upon law. Not even the most absolute dictatorship could avoid falling into this category, because the dictator’s power can be conceived only as explicitly or implicitly delegated to him by a basic law that stands at the top of the legal system. The legal order is a hierarchy, a system of imputations running from the basic norm at the top to the individual contract and specific administrative act at the bottom. There is thus no categorical distinction between public and private law, between a natural and a legal person.11
The critical impact and debunking force of the Austrian school cannot be denied. Its insistence on the sole validity of positive law and on the complete ejection from the science of law of all moral considerations of a sociological or political character make it impossible to cover political demands with the cloak of law. At bottom, the theory is relativistic and even nihilistic; no wonder its founder and untiring exponent, Hans Kelsen, identified democracy with parliamentarianism and defined it merely as an organizational framework for reaching decisions without recourse to any universally accepted values.12 This relativistic conception of democracy is precisely the ground for the decisionist and socialist attacks.
Though a debunking doctrine may be a useful tool in scientific analysis, it cannot provide the basis for political action. The pure science of law, furthermore, shares the defects of logical positivism and every other ‘pure science’: it is virginal in its innocence. By throwing out of account all relative problems of political and social power, it paves the way for decisionism, for the acceptance of political decisions no matter where they originate or what their content, so long as sufficient power stands behind them. The pure science of law has done as much as decisionism to undermine any universally acceptable value-system.
It was the liberals who represented in the legal field the great cultural tradition of Germany—profound historical knowledge, sharp and precise power of analytical thought, and a firm adherence to the values of German idealist philosophy. They attempted to bring the democratic structure into harmony with liberal guarantees. The Weimar system, supposedly the constitutional expression of this harmony, was the embodiment of their failure.
Little need be said of the conservative constitutional doctrines. Their dream of monarchical restoration shared with decisionism the longing for a strong state, united within and powerful without. The state was to be the highest moral value. As critics of the liberal democracy, the conservatives played directly into the hands of the anti-democratic movement and prepared the first stage of National Socialist ideology.
The idea of the totalitarian state grew out of the demand that all power be concentrated in the hands of the president. Immediately after Hitler’s accession to power, political theorists began to make much of the totalitarian idea as elaborated by the constitutional lawyers. All power was to be vested in the state; anything less was sabotage of the National Socialist revolution. The totalitarian state was described as an order of domination and a form of people’s community. It was anti-democratic because democracy, with its notion of an identity between the ruler and the ruled, undermined the necessary authority of leadership. Leadership, the National Socialists declared, is not delegated by the people—’authority presupposes rank and is valid against the people’s will because the people do not bestow but recognize it.’13
Hitler’s accession to power gave rise to a vast literature re-examining the traditional forms of state and government. Distinctions were drawn between the liberaler Rechtsstaat, born in the French Revolution and embodied in the English constitution, and the nationaler Rechtsstaat first developed by Italian fascism and later victorious in National Socialist Germany. The latter was characterized as a state that reconciles justice with political necessity.14 The essence of the National Socialist revolution was believed to lie in its revival and further development of the best conservative tradition (formerly exemplified by the rule of Frederick II of Prussia), a tradition that had been ‘desecrated and degraded’ by the liberals with their ‘night watchman’s state.’15 For some theorists, Hegel’s idea of the state was the model for National Socialism.
In order to avoid identification of the totalitarian state with the absolutisms of the seventeenth and eighteenth centuries, the theorists insisted further that the state was more than a mere system of coercion: it was a form of life of the racial Volk. Various types of totalitarian states were distinguished in order to mark off the National Socialist brand from the others, whether Italian or Russian.16
The totalitarian doctrine, it is important to recognize, was once espoused by the top party leadership. Goebbels declared that ‘our party has always aspired to the totalitarian state . . . The goal of the revolution must be a totalitarian state pervading all spheres of public life.’17 Frick, minister of the interior and a leading figure in the party, signed a circular letter on 11 July 1933, admonishing the federal regents ‘to guard the state authority under all circumstances.’18 Hitler addressed the S. A. leaders in a similar vein in Bad Reichenhall on 1 July 1933. The third phase of the revolution, he said, ‘must be the establishment of the totality of the state, as we understand it; the National Socialist movement must make this state the bearer of its spiritual goods.’19 At the 1933 Lawyers Conference, he exhorted his listeners ‘to guard the authority of this totalitarian state.’20 And again as late as 15 November 1934, Frick, speaking to army officers, stressed the need for absolute authority, for ‘a strong government unhampered by individual persons, groups, classes, estates, parties, and parliament.’21
Such glorification of the state was abandoned a short time later (it is absent from Mein Kampf, by the way). Why was it stressed so heavily through 1934? Three factors appear to have been decisive. First, the political theorists and lawyers of the previous era had retained their positions of prominence in the matter of formulating ideology. These men looked upon the National Socialist revolution as a new edition of the imperial system, with its basis in the authority of the bureaucracy and the army. Now that it was back in the hands of reliable leaders, the German state would again embody the highest values. Italian fascism had developed a doctrine of the totalitarian state, and since the differences between the two had not yet manifested themselves, the natural attempt was made to tie the Italian doctrine in with the earlier German tradition.
A special twist given the totalitarian doctrine by Carl Schmitt, the most intelligent and reliable of all National Socialist constitutional lawyers, helped greatly. He made it palatable even to big industry, something he had set out to do as early as 1932. In an address—significantly entitled ‘A Strong State and Sound Economics’—before the Langnam Verein* (literally the ‘Long Name Association’ or northwestern industries), he invented a distinction between two kinds of totality, the Roman and the Germanic.22 Roman totality was quantitative; the Germanic, qualitative. The former regimented all spheres of life, interfering with every human activity. In sharp contrast, the Germanic remained content with a strong and powerful state that demanded full political control but left economic activities unrestricted. Schmitt’s doctrine is, of course, no more Germanic than its opposite is Roman. In fact, it had been formulated much more clearly and realistically by an Italian, Vilfredo Pareto, who espoused political authoritarianism and economic liberalism simultaneously and who influenced the early economic policies of Mussolini.
Both considerations—the appeal to the monarchic tradition of a strong state and to private property and private initiative—loomed large in the last speech Hitler delivered to a (relatively) freely elected Reichstag (23 March 1933). Hitler declared that a monarchical restoration was not subject to discussion at present because the chief task was to establish the unconditional authority of the government. At the same time, he promised the strongest stimulus to private initiative and the recognition of private property.23
The totalitarian doctrine of the state thus satisfied the various traditional partisans of German reaction: university professors, bureaucrats, army officers, and big industrialists. It was also acceptable to the western world in general. For, any political theory in which the state is central and dominant and entrusted with the guardianship of universal interests is in line with the tradition of western civilization, no matter how liberal that tradition may be. The western tradition does not regard the state as an oppressive machinery opposed to the rights of man, but as an entity watching over the interests of the whole and guarding those interests against infringement by particular groups. State sovereignty expresses the need for security, order, law, and equality before the law, and the National Socialist emphasis on the totality of the state had not yet broken with this European tradition.
Totalitarianism also served the practical needs of the moment. During the first months of the regime, every Brown and Black Shirt functionary tried to grab all the spoils and offices he could. Rank and file members of the party began to grumble about the betrayal of the revolution; one wing even called for a second revolution. Röhm’s Brown Shirts eyed the new power of the Reichswehr enviously.
The situation was difficult and Hitler was prompt to use the weapon of the totalitarian doctrine. The revolution was to proceed in an orderly fashion—in so far as property, the civil service, and the army were concerned. Section 26 of the Army Act and a Prussian decree of 4 May 1933 ruled that party members must surrender their membership while serving in the armed forces or the police, since they were subject to a different disciplinary power.* On 20 November 1933, Rudolf Hess, then deputy leader, came out with a forceful declaration that party leaders had no right to issue ordinances and decrees.24 Above all, local and provincial party bosses must keep their hands off business. That is the meaning of Dr. Frick’s circular letter warning high federal officials, to whom it was addressed, against allowing the party machine to infringe upon the authority of the bureaucracy. Dr. Frick had no intention of interfering with the terrorization of Jews; the beating of defenseless prisoners in the Brown Shirt barracks; the kidnapping of communists, socialists, and pacifists; or the murder—‘shot while trying to escape’—of political enemies. But the party must not interfere in business and administration.
The totalitarian theory was also the instrument for co-ordinating all public activities. Absolute control from the top—the famous Gleichschaltung (synchronization) of federal, state, provincial, and municipal activities—was justified in the doctrine of the state’s total right and total power. In contrast to the pluralistic and federalistic Weimar Republic, the new state could not and would not brook the existence of autonomous public bodies within it; and during the years 1933 and 1934, which Hitler called the period of stabilization of power, a whole series of enactments took care of all the necessary details. Unlike Italy, full concentration of power and Gleichschaltung were accomplished in a very short space of time.
The basic statute was the enabling act of 24 March 1933, entitled ‘An Act to Relieve the Distress of the People and of the Reich,’ passed by a Reichstag elected less than three weeks before, on 5 March. It has also been called ‘the preliminary constitution of the Reich.’25 This Act gave the cabinet unlimited legislative power, with the right to depart from constitutional provisions and to interfere everywhere except in parliamentary institutions or with the federal council (Reichsrat). It further decreed that the powers of the president were not to be curtailed. A new and ‘simplified’ legislative procedure was instituted. Although the legislative power of the Reichstag was not expressly abolished, that power became obsolete in effect, to be used only in exceptional situations and then only for ornamental purposes.
The Reichstag that is left today, composed of party officials, is a mere ornament, and after his flight from Germany Mr. Fritz Thyssen, himself a member of that august body, revealed26 that the Reichstag session on 1 September 1939 (the war meeting) was attended by only one hundred members, while the remaining seats were simply filled at random with party secretaries.
The cabinet became the normal legislator. This wiping out of the separation between legislative and administrative functions—a characteristic development in nearly all modern states—means that political power is no longer distributed among different strata of society and that minorities can no longer oppose legislative proposals.27 The state power is not only unified but is absolute. (It is also unified under liberal democracy, of course, for separation of powers does not mean that three different powers exist. It would be more accurate to speak of separate and distinct functions rather than powers.)
The enabling act represented a most radical departure from the principles of liberal constitutionalism, from the system of norms and customs that limits the state’s legislative power. As one writer put it, ‘the federal administration received the power of leadership over Germany; under Adolf Hitler this is by far the most extensive political power.’28
The history of the enabling act gives the lie to the National Socialist claim that they came into power by constitutional means. It is true that the act was passed by a vote of 441 to 94 and thereby received the necessary two-thirds majority of the members present (Article 76 of the Weimar Constitution). But the meeting took place in an atmosphere of terror. The eighty-one Communist deputies and many Social Democrats had been arbitrarily arrested and were therefore absent. (The Social Democrats present voted against the measure.) If the Centrists had not capitulated and given their support to the bill, a reign of terror would unquestionably have been unleashed.
Furthermore, Article 5 provided that the enabling act was to lose its validity if ‘the present federal cabinet is replaced by another.’ The circumstances surrounding this provision, demanded by Hindenburg, are significant. The world has forgotten that in this first Hitler government, which took power on 31 January 1933, there were only three National Socialists out of twelve. (In effect, this cabinet was a revival of the Harzburg Front of October 1931, organized by Hitler and Hugenberg with Schacht’s blessing, in order to forge a ‘national’ opposition to the Brüning cabinet.29) It was to protect the majority of his own reactionary friends in the new government of ‘national concentration,’ and particularly three of them (Vice-Chancellor von Papen, Hugenberg, minister of economics, and Gerecke, minister of employment), that Hindenburg insisted on Article 5. In other words, the enabling act gave full legislative power to the cabinet as then constituted and to no other.
Hugenberg soon resigned as minister of economics; Gerecke was arrested for embezzlement; the Nazi Darré was appointed minister of agriculture; and Deputy Leader Hess began to attend cabinet meetings though not a member. Legally, that should have ended the enabling act. It goes without saying that in fact nothing of the sort occurred. Here is how one constitutional lawyer, a high official in the ministry of the interior, defended retention of the act: ‘It would belittle the significance of the great event of national concentration if we were to enter upon a discussion of what would constitute the premature end of the simplified legislative process, whether the replacement of one person by another in the cabinet or an alteration of the political composition of the cabinet.’30 Another commentator, less reticent, contended that the act retained its validity because the National Socialist party had always had a majority in the cabinet.31 This was a manifest lie.
Because of the obvious violation of Article 5, the political and legal theorists of National Socialism prefer to speak of the enabling act as ‘the corner-stone of a new constitution.’ To call it an enabling act after all would be tantamount to recognizing its roots in the despised Weimar constitution. From an exceptional delegation of power under the constitution, and hence a measure the validity of which must be judged in terms of the constitution, they turned the act into a Reichsführungsgesetz, a statute creating the Reich leadership. As such, it marks the end of Weimar and the beginning of the National Socialist system.32
In any event, National Socialism is not concerned with legal conformity to the prevailing constitutional system. It substitutes the claim of ‘legitimacy.’33 A system is ‘legitimate’ when it has an intrinsic justification for existence, in this case, the success of the National Socialist revolution. In other words, the justification of the new constitution lies in its success—an argument that is neither new nor convincing.
Nor did violations of the enabling act stop with Article 5. As we have seen, the act ostensibly preserved parliamentary institutions and the federal council, and promised to guarantee the rights of the president. In less than two years, however, the federal council was abolished (statute of 14 February 1934) and the posts of chancellor and president merged immediately after Hindenburg’s death on 1 August 1934. The merger was defended by reference to Hindenburg’s will, in which he is supposed to have nominated Hitler as his successor, and by the 89.9 per cent approval in the popular referendum of 19 August. Even according to National Socialist theories, the referendum had no constitutional status, but only a possible moral significance. The Weimar constitution distinguished between referendum and initiative. In the former, the people acted as arbiters in legislative conflicts between the president and parliament—a situation that never arose in practice. The initiative, on the other hand, gave political groups an opportunity either to force legislation or to prevent parliamentary enactment. Initiatives had been attempted three times in the entire history of the Republic: the Left-inspired initiative to confiscate princely properties; the Communist initiative against battleship construction; and the initiative started by the reactionaries against the Young Plan. They failed; inevitably so in view of the way in which public life was thoroughly organized and the rigidity of the party system. Nevertheless the initiative was a potential instrument for correcting the petrified state of political and parliamentary life. The initiative started by the Communists to expropriate the princely houses, although it failed, so aroused the Socialist masses that the Social Democratic executive was forced to change its policy and lead the popular movement.
In contrast to the republican forms, the National Socialist Plebiscite Act of 14 July 1933 is a matter of propaganda rather than of constitutional law. The statute gives the cabinet the exclusive right to submit an intended enactment to the people. National Socialist lawyers have arbitrarily interpreted the statute to mean that the people can also be asked to approve a legislative enactment after it has been passed and published. In a one-party system, lacking liberal guarantees, the plebiscite is something entirely different from the democratic referendum. According to the official release accompanying the plebiscite act, it stems from ‘old Germanic legal forms’ and its function is to express the people’s voice ‘in an ennobled form.’ What if the people should reject an intended or already enacted measure of the cabinet? Apart from the fact that such an outcome is inconceivable, the experts all agree that the Leader is not bound by the popular decision. ‘Even if the voting public turns against him, he remains the one who represents the objective mission of the people.’34
The process of unifying and concentrating legislative power was completed once the referendum was politically and juristically reduced to the level of a mere ornament and once legislative power was vested entirely in the cabinet. Gleichschaltung could now be freely extended far into the administrative realm. The next step was to abolish the independent status of the states (Länder). The first blow fell with the co-ordinating act of 31 March 1933, giving state cabinets the right to legislate alongside the state diets. The existing state diets were then dissolved by federal statute. In subsequent elections, the so-called ‘national opposition,’ composed of National Socialists and Nationalists, won majorities in all the diets. The majorities became still larger when the Social Democrats were unseated on 7 July 1933. On 30 January 1934, a statute ‘to reconstruct the Reich’ (Reichs-Aufbaugesetz) transferred to the Reich all sovereign powers still held by the states, thereby destroying their state character and wiping out the diets. The same process was repeated in the municipalities; the municipal diets were abolished by statute of 30 January 1935 (Gemeindeordnung). Authoritarian control was complete from top to bottom.
A second co-ordinating act, passed on 7 April 1933, introduced the office of federal regent, appointed by Hitler. In Prussia, Hitler himself took this office. A statute of 30 January 1935 (Reichsstatt-halter-Gesetz) made the regents subject to cabinet order and thus transformed them into civil servants of the Reich. They were deprived of their right to appoint the state governments and could merely propose names to the Leader. The federal regents thus became figureheads. The post was well paid, however, and went to deserving party officials. Even National Socialist lawyers now find it impossible to determine precisely what is the constitutional position of the states. The best they have been able to do so far has been to say that the states continue to exist as transitory institutions awaiting the final territorial reorganization of the Reich.35
The same theorists who had demanded that all power be concentrated in the president’s hands were now equally eager to reduce his position to that of a figurehead. One lawyer put it very nicely: ‘Owing to the failure of Parliament, the center of gravity shifted to the president. Now, after National Socialism’s seizure of power, the Reich president can once again free himself from his entanglements with daily politics and return to his constitutional position as the representative of folk unity and as the protector of the nation.’36 Another writer, a bit more careful, declares that the president has not surrendered his authoritarian leadership to Hitler, but has assumed a new function, that of representative.37 The rapid decline of presidential power was given clear legislative expression, especially in the statute creating the office of federal regent. The regents were not made subject to the president’s command but to that of the chancellor38—‘the federal regent’s task is to provide for fulfilling the principles of politics laid down by the federal chancellor.’ And the president, once the strong man, now became a mere front behind whom stood the unlimited power of the Führer.
Before the outbreak of the present war, the concentration of political power in the hands of the federal cabinet had attained a very high stage. The institution of federal regents and the destruction of municipal self-government that reduced the status of the municipal organs to that of federal agents, gave the federal cabinet full power over the whole political structure of Germany down to the lowest territorial unit. This power was restrained only by the administrative tribunals and the judiciary.
The outbreak of the war has, however, seen an even greater concentration of political power. The Ministerial Council for the Defense of the Realm was formed out of the Federal Council for the Defense of the Realm (nothing is known of the composition or tasks of this council, as even the Frankfurter Zeitung was forced to admit in its issue of 1 January 1941). The ministerial council has virtually taken over the legislative power of the cabinet. It consists of Reich Marshal Göring, who is its head; the Leader’s deputy; the director of the federal chancellery, Lammers; the chief of the supreme command of the armed forces, Keitel; the general commissioner for administration, Frick (also minister of interior); and the general commissioner for economics, Funk (also minister of economics). In special cases, it also allows for the addition of other persons. The creation of the Ministerial Council for the Defense of the Realm is tantamount to the establishment of a general staff for civil defense and for economics. The general commissioner for economics (Funk) is the superior in power to the ministers of economics, labor, food, forestry, and even finance; while the ministers of justice, interior, culture, and church affairs are subordinate to the general commissioner for federal administration (Frick). Nothing gives a clearer picture of the reversal of outworn liberal forms than the degradation of the minister of finance. Fiscal considerations can no longer prevent the carrying out of necessary administrative and economic measures. The paramount influence that the treasury had and still has in England has always been an obstacle to the execution of many necessary tasks. In the new administrative set-up, the minister of finance has become purely a subordinate official.
The ministerial council is the normal legislator for all practical purposes. Its decrees have the power of law and do not have to be countersigned by the Führer, for, as the Frankfurter Zeitung puts it, ‘during the war he often stays in his headquarters outside the capital’ (10 January 1941). The ministerial council regulates all matters that are directly or indirectly connected with the defense of the state. This stipulation, of course, in no way limits its authority.
The decrees of the ministerial council, however, do not and cannot take care of all details, and in the ordinary or simplified legislative process details are normally left to executive decrees promulgated by the minister under whose jurisdiction the particular matter falls. Similar but more far-reaching power attaches to the executive decrees that can be enacted to carry out or go beyond the legislative acts of the ministerial council.
The commissioners for economics and for administration and the general deputy for the Four Year Plan (Göring) may, each in his own domain but with the consent of the other two and with that of the chief of the supreme command of the armed forces, issue executive decrees that may—and this is the new step—even contravene existing legislation. The commissioners’ authority is thus far wider than that of the ministerial bureaucracy that usually formulates the executive decrees. As a result, the commissioners have altered the penal code and the code of civil procedure.
Even this development, however, is not the last in the process of concentrating legislative power. In January 1941, the Führer issued an edict empowering the Reich Marshal independently to enact any legislation or administrative decree that he deemed necessary for air-raid protection. This empowering edict goes further than any other known.
Thus the Leader has the following legislative powers at his disposal:
1. His direct acts, either in the form of statute, decree (Verordnung), or edict (Erlass). The last-named form is increasingly resorted to, as in the incorporation of Eupen-Malmedy and Moresnet into the Reich and as in the appointment of federal commissioners for Norway and the Netherlands. Another example is the extension of the Four Year Plan. Direct legislative activity on the part of the Leader has diminished, however.
2. The simplified legislative acts of the federal cabinet, based on the emergency statute of 1933. This has been virtually abandoned during the war.
3. Parliamentary statutes. These have not been used since 1936, but may be revived for propagandistic purposes.
4. The referendum. Again a means of propaganda.
5. The legislative power of the Ministerial Council for the Defense of the Realm—the normal legislator.
6. Decrees of the triumvirate of commissioners, part of them executive decrees carrying out legislative acts of the ministerial council, part of them going beyond. Falling within this category is the decree power of the commissioner of the Four Year Plan.
7. The legislative powers of the Reich Marshal in the matter of air-raid protection.
8. The legislative power delegated to the federal ministers in their respective jurisdictions, based upon specific authorizations, and, of course, the large amount of other delegated legislation.
The concentration of political power has not stopped short at the top, but has also been extended to the provincial level. A decree issued by the ministerial council on 1 September 1939 appointed 18 national defense commissioners domiciled at the seats of the 18 provincial commands of the armed forces (Wehrkreiskommando). They are the executive agents of the ministerial council for the provinces. Their task is the unification of civil defense. They have no apparatus of their own, but have to utilize the existing machinery of the provincial presidents (in Prussia), the federal regents, or the state ministries, according to where the provincial command of the armed forces is located. The national defense commissioners are, therefore, the superior administrative officials in the provinces, entitled to give orders to every administrative agency in their region, unless exempted. Their deputies, who, in fact, often carry out the actual work, are the chiefs of those administrative agencies that the national defense commissioners utilize for carrying out their tasks. This regulation entails a complete destruction of the traditional hierarchical structure of the German Civil Service and at the same time testifies that the need for administrative efficiency is esteemed more highly than are traditional conceptions and values. To give an instance, National Defense Commissioner Number XII, for the command of the armed forces domiciled at Wiesbaden, utilizes for its activities the office of the sub-provincial president in Wiesbaden. His deputy, therefore, is by law the Regierungs präsident, the sub-provincial president at Wiesbaden. Ordinarily, this sub-provincial president is subordinate to the provincial president, but as a deputy of the national defense commissioner, he is in fact placed above his superior officer.
According to a further decree of the ministerial council of 22 September 1939, the national defense councils may appoint special deputies for specific regions.
On the same date 18 national defense committees were set up to aid the national defense commissioners. They are composed of the federal regents, the party district leaders, the provincial presidents, the prime minister and ministers of the state, the high S.S. leaders, the sub-provincial and provincial presidents, the presidents of the labor exchanges, the trustees of labor, and such other men as may be called upon. The function of these committees is of a merely advisory nature.
War, therefore, has brought the reality of the totalitarian state to completion. Political power resides exclusively in the Ministerial Council for the Defense of the Realm.
Immediately before the outbreak of the war, the restrictions imposed by administrative tribunals were largely abolished. By an edict issued by the Leader on 28 August 1939, the simplification of the administration was made the order of the day. Under this misleading title, restrictions upon the authoritarian power of the administrative agencies were largely abolished. In the administrative procedure of the Reich, of the states, of the municipalities, and of public corporations, the right to a second appeal was abolished. The judicial appeal before administrative tribunals was replaced by a mere complaint to the superior administrative agency. Only if the lower administrative tribunal permitted an appeal to the higher administrative tribunal could such an appeal be made.
The second decree for the simplification of the administration, issued on 6 November 1939, simply abolished all the lower administrative tribunals, and another decree of 26 September 1939 abolished the lowest judicial administrative agencies in the counties. According to the Leader’s edict, public corporations have become simply organs of the state. They are now not only controlled by it, but have become part and parcel of the administrative apparatus. They can be closed down at the discretion of the federal authorities. Only the party and its affiliated organizations are exempt from this possibility.
The edict of 3 April 1941 set up a new federal administrative tribunal. It combines the Prussian administrative tribunal, the former Austrian administrative tribunal, the former federal disciplinary tribunal, and so on. The members are appointed by the Leader, but they can be transferred to other offices at the end of each year. Extraordinary members for dealing with special problems may be appointed for fixed periods by the minister of the interior, and even outsiders may be appointed. The new federal administrative tribunal is, therefore, not an independent agency, and the judges do not enjoy a guarantee of independence. Thus, in reality, the power of the Ministerial Council for the Defense of the Realm and of its inferior agencies, the eighteen national defense councils, is completely unrestrained and unlimited. It is subject to no institutional control
During the present war, the reality of the totalitarian state has, therefore, been extended to such a degree that there can hardly be scope for further extension.
But this reality does not correspond to the ideology. To the extent that the political power of the state has increased, the idea of the totalitarian state has been rejected.
* See p. 137.
* See also pp. 65, 369, 378, 382.