The Nazi Assault on the Rule of Law
If you win, you need not have to explain. If you lose, you should not be there to explain!
—ADOLF HITLER
WHAT HAPPENED IN GERMANY WAS THE WORST POSSIble outcome for a representative government. How could a democracy allow a madman to take over the country and reign terror on the world? How could his followers—and the world—allow the slaughter of millions of Jews, Gypsies, gays, and others?
A number of important factors contributed to the Nazi rise to power:
• Anger at Germany’s dysfunctional and in some ways corrupt republican government established after World War I;
• An ideology of racial superiority to compensate for Germany’s defeat in that war;
• Conservative Catholic and Protestant concern about moral decay and desire for a more orderly society under authoritarian rule;
• “Alternative fact” conspiracy theories blaming Jews for Germany’s military humiliation and economic misery;
• The public’s willingness to dispense with procedural due process and succumb to the politics of accusation; and
• The Nazis’ success in directing public anger at the “fake” news media.
Germany in the 1920s and early 1930s thus was simultaneously confronted with most of the problems undermining the rule of law in a democratic society: religious intolerance, violations of due process, myths and alternative facts, attack on the free press, and corruption.
Meanwhile, the British and French were intent on retaliating, punishing, humiliating, and squeezing reparations out of Germany for the First World War. The German economy was in free fall, and fascist gangs began fighting the fear-mongering communists in the streets.
Another important factor was the Russian interference in the Weimar Republic. Soviet-backed Communists colluded with their ideological enemies—the Nazis—to attack the more centrist parties.
By the middle of 1933, the rule of law—or at least the democratic rule of law—had completely collapsed as Hitler and the Nazi Party took over the country.
Hitler for thirty years had been a ne’er-do-well, until 1919, when he found his purpose in the German Workers’ Party, a small group of crazed right-wing radicals.
Hitler was not a politician. The first political office he held was Reich chancellor in 1933. He had run for the presidency in 1932, but failed. Once in office as chancellor, he often left the capitol, refused to read the documents he didn’t want to read, and rarely held cabinet meetings. A man with no friends, Hitler did all the talking when he met with staff. His relationships with important underlings like Goebbels, Goering, and Himmler were cool and remote. If he read, it was military history. Though poorly educated, he felt he always knew better than anyone else. He would spout half knowledge, made-up ideology, and fake news in front of audiences that knew nothing at all.
Before Hitler, the Nazi Party was obscure and on the fringe. Once he joined, Hitler discovered his ability to charm large crowds. His speeches about halting immigration and making Germany great again, as it was before World War I, vitalized the party. In the beginning, Hitler was seen as a crank and a fool, but once his brown-shirted thugs began doing his bidding, those who mocked him did so at their own peril.
His Nazi Party preached an extreme nationalist agenda, and as early as 1920, the Nazis proclaimed that “members of foreign nations are to be expelled from Germany.” Said Joseph Goebbels, later Hitler’s minister of propaganda, “Certainly, we want to build a wall, a protective wall.”
Hitler excelled at telling and spreading lies. He said Germany would have won the First World War if only more Jews had been gassed. (Poison gas had been used by both sides, but Hitler later found other even more pernicious uses for it.) In speeches, he called Nazis victims of communist violence, without mentioning that the Nazis were violent themselves.
Most importantly, Hitler excelled in using mass media. On the radio he was spellbinding. Large posters with his slogans were seen in cities and towns everywhere. He became a featured performer in cinemas.
Hitler was not a conservative—his intention was to destroy democracy and the rule of law—but the representatives in the legislature, even those not in the NSDAP, were sure they could control him and use him to forward their agenda.
Hitler spoke out forcefully against the rise of communism in Russia.
But Hitler took a page out of Stalin’s playbook, sharing his contempt for democracy, freedom of thought, and a free press.
The Nazis used music and language to emphasize their cultural identity. Religion was important, but it was subverted to national identity. The Nazis didn’t care whether you were Protestant or Catholic, only that you were German Protestant or German Catholic.
As the Communists and the Nazis fought for the soul of the German people, Nazi supporters established a rule of law built on nationalism.
Then there were hateful lies about Jews. Anti-Semitism had anti-globalist overtones including the conspiracy theory that the Jews were always trying to establish an international regime—a world government led by Jewish bankers. Another myth that emerged during this time is that German-Jews were disloyal during World War I, resulting in Germany’s defeat. Jews who didn’t support Hitler and the Nazis were also called disloyal. European, German, and Nazi anti-Semitism was built upon a foundation of fake news.
The Nazis also hated the Jews because some of the leaders of Marxist-Leninism were Jewish, even though the vast majority of German Jews were not communists. Only the most perverted minds could combine a Jewish bankers’ plot with a Jewish international communist conspiracy, but so be it.
The Nazis also had their own—unique—views about the rule of law.
Whereas the communists in the USSR viewed the rule of law solely through the lens of class struggle, the Nazis viewed the rule of law solely through the lens of nationalism. As a result, the rule of law became relative to the national identity defining it. Any universal endeavor to understand right and wrong, good and bad, whether based on legal tradition, religion, or secular philosophy, was subordinate to the national cultural context. Great religious leaders such as Martin Luther, great late-nineteenth-century philosophers, great writers, and great composers from Bach to Beethoven were great because they were German. Thus, the law had to be uniquely German as well.
Principles of law that were generally recognized in international treaties, and principles of right and wrong at the center of religious teachings and secular philosophy for centuries, were shunned by Nazi legal scholars who emphasized instead the importance of an inherently German legal system to suit Germany’s unique needs, given its place in the world. If Germany was going to be strong, not pushed around by Great Britain, France, and the United States, the rule of law must be undertaken in a German way.
Perhaps fair-minded judges in other countries applied legal principles to the facts of individual cases, but Hitler and his sympathizers believed that did not work in Germany. Judges needed to be sympathetic above all else to the nation and to the Nazi Party. Carl Schmitt and other pro-Nazi legal scholars did not trust other legal systems. Not right for Germany. Hitler’s most ardent supporters believed that independent judges, particularly Jewish judges, should be removed.
With relative truth, both legal principles and facts lose their importance. Hitler and his propaganda minster Joseph Goebbels made up scary stories to use against their enemies. They created alternative facts. The charge that Jews caused Germany to lose the war was repeated over and over until the large non-Jewish segment of the German populace believed it. If you repeat a lie enough times, it becomes true.
Alternative legal principles + alternative facts = alternative law.
During Hitler’s presidential campaign in 1932, he also ramped up his attack on the free press.
Hitler in 1932 was campaigning against Paul von Hindenburg, who was a commander during the second half of World War I before being elected president of Germany. Hitler would fly around in his airplane and make dramatic landings, out of the clouds. He’d give a speech at an airfield and then fly to the next town. He was stirring things up, spreading propaganda, stressing German unity and Aryan supremacy, and attacking the press.
Hitler called the free press of the Weimar Republic “die lügenpresse, the lying press,” a term coined in 1914 during World War I by Reinhold Anton, who used it to refer to enemy propaganda. In 1918, when news stories appeared about Germany losing the war, the German Defense Ministry released a book titled The Lügenpresse of Our Enemies. A decade later, in his presidential campaign, Hitler turned lügenpresse into a powerful propaganda slogan to stir hatred against newspapers. Hitler called his critics members of the “lügenpresse apparatus.”
Hitler lost the 1932 presidential election by a considerable margin, receiving roughly one-third of the popular vote. The results were Paul von Hindenburg (Independent), 53 percent; Adolf Hitler (NSDAP), 36 percent; and Ernst Thälmann (Communist), 10.2 percent.
After this loss, Hitler turned to gaining more seats in parliament for the NSDAP during a series of parliamentary elections. In the election of July 1932, the results for the four largest parties were: NSDAP, 37.27 percent; Social Democrats, 21.58 percent; Communists, 14.32 percent; Centre Party, 12.44 percent. In another election, in November 1932, support for Nazis actually slipped by four percentage points: NSDAP, 33.09 percent; Social Democrats, 20.43 percent; Communists, 16.86 percent; Centre Party, 11.93 percent.
At this point, Hitler consolidated his power and pressured President Hindenburg to appoint him chancellor in January 1933. Hindenburg’s government was based on popular support in parliament, so Hindenburg agreed. In March 1933, Germany had yet another “election,” and with Hitler now chancellor, the results were even better for the Nazis: NSDAP, 43.91 percent; Social Democrats, 18.25 percent; Communists, 12.32 percent; Centre Party, 11.25 percent.
That was the last election. On February 27, 1933, six days before that election, there had been a fire of unknown origin in the parliament building, the Reichstag. Hitler embraced the fake news story that the fire was part of a plot by the Communist Party, and the next day he persuaded President Hindenburg to sign the Reichstag Fire Decree under emergency powers presumably authorized by Article 48 of the German Constitution. The decree suspended civil liberties including freedom of the press and freedom of assembly. Hitler began mass arrests of communists and other political opponents. Then on March 23, 1933, the Reichstag, with Communist deputies and some Social Democrats in prison rather than voting, passed the Enabling Act, which gave Chancellor Hitler and his cabinet power to enact laws without approval from the Reichstag. Germany was transformed from a constitutional republic to a dictatorship in less than three months.
Hitler vowed to make Germany great again by promising to bring back traditional German moral and cultural values; deal with the lying press; put his political opponents in jail; solve the “problem” created by a religious minority, the Jews; and deal with the foreign powers who had been Germany’s enemies abroad. Was Hitler all talk, or would he actually do some of the things that he had wanted to do for years?
HITLER MADE GERMANY GREAT AGAIN—AT LEAST ON THE BIG SCREEN.
Hitler was able to spread his lies largely because he was charismatic. He spoke his mind, and even when he was offensive and belligerent, his audience was captivated. With motion pictures directed by Leni Riefenstahl (known best for Triumph of the Will in 1935), the Nazi propaganda machine effectively combined a new form of entertainment (motion pictures) with politics. Purveyors of this Nazi propaganda always insisted it was fair and accurate, but hidden behind the dramatic rhetoric and visual effects was a bevy of alternative facts and falsehoods about what made Germany great (Hitler and the NSDAP), who made Germany weak (Jews, among others), and who were Germany’s enemies (the world’s democracies).
HITLER BROUGHT BACK “TRADITIONAL” GERMAN CULTURAL AND MORAL VALUES.
“Degenerate” (modern) art was displayed in a government-sponsored exhibition in 1937. Some of the valuable works by better-known artists (Van Gogh, Cézanne, Dalí, Ernst, Klee, Léger, and Miró) were then sold or secretly taken by Nazi officials for personal collections, while less valuable works, and some valuable ones, were destroyed.
Degenerate books were burned. The most famous book burning was at Bebelplatz in Berlin on the evening of May 10, 1933, but there were many more.
Traditional, not modern, German music was glorified. Richard Strauss (the first president of the Reichsmusikkammer) was in vogue; Felix Mendelssohn and Gustav Mahler (and other German Jewish composers) were considered “degenerate.”
Gay men and lesbians were put in concentration camps where they were forced to wear the pink triangle (men) and black triangle (women).
Left-wing professors were removed from their posts.
Hitler tore apart any semblance of separation of church and state. Conservative theology was celebrated. A nationalist “religious right” emerged within the German Evangelical (Lutheran) Church in the 1920s calling itself the Deutsche Christen, “German Christians,” and then in the 1930s worked to unify a Protestant “Reich Church,” using biblical teaching to support the Nazi regime. Some Catholic bishops also embraced Nazism, in spite of their loyalty to Pope Pius XII, who struggled to address the obvious moral concerns from this dual allegiance.
Opponents of the Nazification of the Protestant and Catholic churches were removed from their posts and imprisoned. Dietrich Bonhoeffer had founded the Confessing Church, an alternative to the government initiative to unify all Protestant churches into a single pro-Nazi Protestant Reich Church. Bonhoeffer was arrested in April 1943 and executed in April 1945.
Minority Christian sects, such as Jehovah’s Witnesses, were persecuted and put in concentration camps (Jehovah’s Witnesses wore the purple triangle). That persecution continued until Hitler’s forces were defeated by the Soviets and Allied forces led by General Dwight D. Eisenhower, who, coincidentally, grew up in a Jehovah’s Witness household in Abilene, Kansas.
HITLER WENT AFTER THE PRESS.
When Hitler was appointed chancellor in 1933, 4 percent of the newspapers were controlled by the Nazis. Within six months, that number grew to 96 percent. The “fake news” media was put out of business and the news was whatever Hitler said it was.
HITLER ENDED THE INDEPENDENCE OF JUDGES.
No longer would German law be concerned with individual rights. Now the focus was on the collective identity of Germans. That meant replacing “degenerate” judges with ones who supported traditional German values.
To that end, months after taking office, Hitler disqualified all Jews from being judges. He argued that Jewish judges would be biased in cases involving non-Jewish Germans.
“We can’t have biased Jewish judges,” Hitler said.
In April 1933, existing Jewish judges were removed from office.
The judges who succeeded them were members of the Nazi Party.
HITLER PUT HIS POLITICAL OPPONENTS IN JAIL.
Soon after Hitler took over as chancellor on January 30, 1933, the Communist Party was dismantled and its real estate holdings were confiscated. Ernst Thälmann, the Communist candidate who had run against Hitler and Hindenburg in 1932, was arrested and held in solitary confinement for eleven years before being shot in 1944.
In early 1933, Hitler began arresting people. Storm troopers raided homes, rounded up citizens, especially communists and Jews, and took them to barracks where they were beaten, tortured, and often killed.
All political opposition was destroyed, and Hitler was free to do as he wished.
HITLER SOLVED THE “PROBLEM” OF GERMANY HAVING A “DANGEROUS” RELIGIOUS MINORITY: THE JEWS.
By April 1933, the Jews had become targets. The editor of Der Stürmer, Julius Streicher, called for a boycott of Jewish businesses. Nazis picketed Jewish stores and told others not to buy from Jews.
On April 7, all civil service workers who weren’t Aryan were fired. In Frankfurt, Jewish teachers were banned from universities. Jews were excluded from being lawyers, artists, and farmers.
Later in 1933, ten concentration camps were built in Germany. Dachau, the first, was built to hold political prisoners, especially Jews and gays.
In 1934, the German government hired Adolf Eichmann to be its expert on Jews. He spied on Jewish organizations in Germany.
Hitler then stepped up the fake news. Der Stürmer printed the oft-told story that Jews used Christian blood to bake matzoh. It “documented” two years of ritual murders.
When President Hindenburg died on August 2, 1934, Hitler became the head of state. A year later the Nuremberg Laws codified Hitler’s blatant anti-Semitism. Only Aryans could be German citizens. Non-Jews could not marry Jews. Jewish-owned property could be confiscated. Jews were banned from serving in the military.
In 1936 the Gestapo was placed above the law. The SS Death’s Head division was assigned to guard the concentration camps. In 1937 Jews were banned from many more professional occupations.
In 1938 Germany annexed Austria. Hitler put Eichmann in charge of the Austrian Jews. The Germans built a concentration camp near Linz, Austria. In July, Jewish doctors were prohibited from practicing medicine.
On November 7, 1938, a seventeen-year-old Jewish boy deported to Poland shot and killed Ernst vom Rath, a German official. Rath died on November 9, precipitating Kristallnacht, the breaking of the windows of Jewish-owned stores. The next month Hitler decreed that all business must be Aryan owned. On December 14, 1938, Hermann Goering was put in charge of “the Jewish question.”
HITLER WENT TO WAR.
In September 1939, Hitler did what many dictators do to further consolidate their power—he started a war.
Hitler invaded Poland, then the rest of Europe, northern Africa, and finally the Soviet Union. Tens of millions of people died.
By 1941, the organization to murder all the Jews in Germany was in place. In Der Stürmer, it was written, “Now judgment has begun and it will reach its conclusion only when knowledge of the Jews has been erased from the earth.”
The Wannsee Conference on January 20, 1942, led to the “final solution.” Mass killings at Auschwitz began. More camps were built, and the killings went unabated for more than a thousand days until, in April 1945, Auschwitz was liberated. Meanwhile, millions died at other death camps such as Bergen-Belsen, Theresienstadt, and Buchenwald.
By 1945, at least six million Jewish men, women, and children had been murdered.
The lesson that we all must learn is that the breakdown of the rule of law isn’t immediate. It’s progressive.
We need to listen to candidates for public office. Hitler’s rhetoric should have warned the Germans that he was unfit to be chancellor and never should have been appointed to that position.
Another lesson is that it can happen in a representative democracy. Although many dictators rise to power in a revolution or a military coup, the Weimar Republic was a representative democracy—an imperfect one for sure, but a representative democracy. Whereas ancient Rome took decades to transform from a republic into the dictatorship personified by Nero and other ruthless dictators, Nazi Germany in 1933 made that transformation in three months.
And the voters went along with it. Hitler was appointed chancellor after the NSDAP won support from only about a third of German voters in 1933, but other voters and politicians accepted his appointment. Many who did not support him preferred him over a socialist or communist. Hitler took advantage of these divisions to unify the country behind him.
German industry leaders tolerated and sometimes supported Hitler because he helped them make money. Ordinary people also believed he was making them better off because the economy was growing.
Hitler had impressed voters with a wonderful infrastructure plan. He promised a lot of jobs building plans. Two of those projects were the autobahn and train stations. But this infrastructure wasn’t really about civilian travel. Rather the roadways were built to transport tanks and soldiers. It wasn’t to give German citizens better lives. It was to win a war.
Hitler was also a very good con man, easily able to help his allies in industry separate ordinary Germans from their money.
A new company established by the Porsche family promised every Aryan German citizen an inexpensive car—a German version of Henry Ford’s famous Model T in America. In 1938, at a Nazi rally, the Fuhrer declared: “It is for the broad masses that this car has been built. Its purpose is to answer their transportation needs, and it is intended to give them joy.” The people heard Hitler’s promise and, in a propaganda film, watched a German family having a picnic by the side of the autobahn in their car—the People’s Car, or “Volkswagen.”
The sales pitch was “Fünf Mark die Woche musst Du sparen - willst Du im eignen Wagen fahren” (“five marks per week you must save, if you want to drive your own car”). Middle- and working-class families all over Germany sent in their five marks every week. They waited for their cars.
Hitler arranged with the Porsche family to build this car for the people of Germany.
Volkswagen delivered a specimen to Hitler, then took the people’s money to build military vehicles. Few people got a car. Few dared complain.
Lawyers and judges also were Hitler’s partners in crime.
After World War II, US authorities held twelve trials in Nuremberg, Germany, that were later known as the Nuremberg trials.
The third trial indicted sixteen German judges and lawyers. Nine were officials of the Reich Ministry of Justice. The others were prosecutors and judges of the People’s Court of Nazi Germany.
These judges implemented the German “racial purity” laws. They were accused of crimes against humanity, abuse of the legal system resulting in mass murder, torture, theft of property, slave labor, and membership in a criminal organization—the SS or the Nazi Party.
Twelve were found guilty.
But what about the German people? Why did they go along with this?
The German people who kept Hitler in power believed they were no longer being humiliated by the French and English. He was making Germany great again. Hitler also kept the German people from feeling threatened by the Soviets who were undermining the rule of law in other countries. To protect themselves from Russians interfering with elections, spreading fake news, and using violence, the German people turned to the NSDAP, which did the very same things—only worse.
They felt that Hitler was helping the economy, which actually outperformed many other industrialized countries in the 1930s. The improved economy attracted a lot of support, particularly in the business community.
Why the German people accepted a man like Hitler as a leader, and why even some Jews, who were used to persecution throughout history, did not view the situation as being uniquely dangerous, is one of the mysteries of history.
But Germany is not necessarily unique.