THE ENABLING ACT
Ivan Hoffman, B.A., J.D.
In order for law to “work,” it requires the agreement and active participation of the population subject to that law. If, for some reason, enough people decided that they did not want to have “law” and refused to agree to the agreement to have law, we would have lawlessness. Law is not self-executing. It doesn’t happen on its own. And if we, acting through our legislative representatives, do not insist on having “law,” either the society breaks down or someone comes along to usurp the place of the “law.” Read “Respect For The Law.”
Some of you may remember how the following example turned out.
By the end of March, 1933 and into 1934, Adolph Hitler and the Nazi party had total control over the German government and state. They controlled both houses of the legislature, the executive branch and the court system. There was no free press. There was no need for Hitler to “trash talk” and demean the law enforcement parts of the government since they were, by this time, solely parts of Hitler and the Nazi regime. All opposition had ceased, either through concession, silence and inaction or overt destruction. There was no one left to voice any contrary views or if there were any such contrary views, those holding those views apparently preferred to pretend that the emperor was not in fact naked.
It was a one man state. The Nazi party became the party of Hitler. And they did so by controlling the law and the statutory structure.
How Did The Nazis Use The Law To Get There?
After the end of World War I, Germany and its economy were in ruins. It was caused to make significant financial reparations to the victors in that war. There was rampant inflation. Germany was not a great country as it once was.
Out of this mire, a voice emerged promising to make Germany great again. The problem was, the German people were told, was that there were others inside Germany who were to blame-- The Jews, the communists, the non-Aryans. If only those destructive influences were eliminated from the German society, all the problems would be solved. When you are desperate and fearful, anyone who comes along with even the promise of a solution, you will follow.
The Nazi propaganda machine was in full swing, because Hitler was a master of the media. His apprentice was Joseph Goebbels.
The Nazi party gained seats in the German legislature but that was not enough for Adolph Hitler. Hitler coerced the German president von Hindenburg, an elderly leader, to make him Chancellor.
Hitler then asked the President to dissolve the Reichstag and a general election was scheduled. A few days before the election, on February 27, 1933, a mysterious fire took place at the Reichstag, which Hitler and the Nazis blamed on the Communists. Then the Nazi’s bootstrapped this event, likely one they manufactured, into convincing the Reichstag (the German parliament) to pass the Decree of the Reich President for the Protection of People and State (commonly known as the Reichstag Fire Decree). In other words, the Nazis manufactured an event and a problem and then offered a solution to the problem. In a speech after the fire, Hitler accused the newspapers of printing fake news.
This Decree suspended freedom of the press and the right of habeas corpus and was used as the basis for imprisonment of anyone the Nazis considered to be opponents and to suppress the news media. See further discussion below about The Editors Act. Hitler then used that Decree as the basis of a raid on the offices of the Communist Party and the arrest the leaders of the party, resulting in the practical elimination of the party.
Since the Nazi party did not have an absolute majority in the Reichstag, it was dependent upon a coalition with the German National People’s Party. To eliminate this need, Hitler and the Nazis drew up plans for the passage of The Enabling Act. Since this Act was considered to be a constitutional amendment, it required a vote of 2/3 of the members of the Reichstag who were present for passage. The other parties in the Reichstag were the Social Democrats (who were deemed likely to vote against the Act) and the Centre Party.
To counter any votes against passage from the Social Democrats, the president of the Reichstag, Hermann Goering, changed that chamber’s internal rules of procedure to make it easier to pass the bill. Goering changed the rules to reduce the quorum to 378 by not counting the 81 Communist party deputies. The German courts helped by ruling that, because they found that since the Communists were responsible for the fire, Communist party membership was an act of treason.
Goering also changed the rules to now state that any deputy who was “absent without excuse” was to be considered as present, but of course would not have the right to vote because they were not actually present. Leaving nothing to chance, the Nazis used the provisions of the Reichstag Fire Decree to detain several Social Democratic Party deputies. A few others fled into exile.
As for the Centre Party, the majority voted in favor of the Act, relying on an upcoming written guarantee from Hitler to protect German Christians. Despite vocal rhetoric opposing the Act, the opposition within the Party collapsed in order to maintain party discipline and those members also voted in favor of the Act. The legislature was thus silenced. Party over country finds its genesis.
Thus, through these back room tactics, a majority was obtained and thus it could be claimed the Act passed. The law was the basis for the actions. The “raising oneself by one’s own bootstraps” doctrine finds its genesis.
On March 23, 1933, the 2 houses of the German legislature passed The Enabling Act. The formal name for the Act is (translated) “Law to Remedy the Distress of People and Reich.” The law provided that the German cabinet had the power to enact laws without the Reichstag. The laws so enacted were to be issued by the Chancellor. (Articles 1 and 2). Although nominally the Reichstag remained in existence, as a practical matter it no longer had any power. Thus, the legal effect of The Enabling Act was to vest in Hitler the sole power to pass laws. There were no longer any checks or balances. The legislature and the judiciary had ceded their legal obligations to the leader.
On May 2, 1933, police units occupied all trade unions headquarters and union officials and leaders were arrested. Hitler, acting under the authority of The Enabling Act, then decreed that the members would henceforth be protected by the “German Labor Force.” As a result, the “labor movement” became co-opted and made a part of the German government and thus the Nazi party. Strikes were banned.
In order to combat the press attacks on the Nazi regime, on October 4, 1933, Hitler, again acting under the provisions of The Enabling Act, enacted “The Editors Law” which banned “non-Aryans” from working in journalism. Among other provisions of the law, one set of provisions required editors to omit from publication anything that could adversely affect the Reich. Fearing imprisonment or worse, many journalists fled the country, ceding the nation to those who would remain compliant and further the enabling. Although used before the rise of Hitler, the Nazis reinvigorated the term “Lügenpresse,” which means “lying press” to refer to newspapers who disagreed with them. The accusations of “fake news” and banning reporters from access find their genesis.
At the time President Hindenberg died in August, 1934, under the prior law, the president of the High Court of Justice was to become president, pending the holding of new elections. However, Hitler seized the office instead in direct contravention of Section 2 of The Enabling Act which stated:
Laws enacted by the government of the Reich may deviate from the constitution as long as they do not affect the institutions of the Reichstag and the Reichsrat. The rights of the President remain unaffected.
Since The Enabling Act contained no provisions for any method of challenging violations of the Act, (and there likely would have been no willing litigants anyway), on August 1, 1934 (the day before Hindenberg died), Hitler’s cabinet enacted a law combining the office of Chancellor with the office of President and thereafter, Hitler was known as Führer (Leader) and was thus both head of state and commander in chief of the armed forces. A plebiscite (vote of the people) was called for to have the people approve this combination, which they did by a “vote” of nearly 90%. The people had ceded their legal rights to the leader.
The day after the vote, the cabinet issued a decree called “Law On The Allegiance of Civil Servants and Soldiers of the Armed Forces,” which superseded the previous oaths taken by these civil servants and soldiers. In those previous oaths, these parties swore loyalty to “the People and the Fatherland” and civil servants had to swear to uphold the constitution and laws of Germany. The new decree ruled instead that members of the armed forces and civil servants had to swear an oath to Hitler personally. The effect was clear: no longer was there a duty to the German constitution and the laws of the country. The duty was only to be loyal to Adolph Hitler.
Over the following decade until the end of World War II, Hitler was thus enabled to spew his hatred of the Jews and Slavs and Communists and there was no one who was willing to say “No” to that. It is well to remember that Hitler was a master media manipulator long before there were reality television shows. Hitler, and Joseph Goebbels, his Minister of Propaganda, used the radio and films and their controlled press to tell people what Hitler wanted them to hear and nothing else.
When you are an autocrat, a dictator, the easiest way to unify your people, your “base,” is to point out that all their problems stem from some group…Jews, Slavs, Irish, Communists, Hispanics, immigrants, women seeking control over their reproductive choices…it does not actually matter what group is inserted in the blank. It is a tactic that has been used long before and since the Nazis but the Nazis were able to intimidate the entire German population to follow that line because there was no one willing or able to oppose it. There was no vote. There was no meaningful resort to the courts.
Like dictators before and since, anyone or any group which opposed the regime became the “enemy of the people.” Joseph Goebbels referred to Jews in this way, much the same way that Joseph Stalin and Vladimir Lenin referred to those who disagreed with Bolshevik policies. If there were such things as security clearances in those days, they would certainly have been revoked as to those who spoke against the regime.
But because the Nazis created the autobahn (although the long-promised “people’s car” never was produced for the people until long after World War II) and large if overbearing architecture, and holidays paid for by the Nazis and an industrialized economy (largely because of production of war materials) and the “Strength Through Joy” movement which provided holidays underwritten by the government and similar bread and circus distractions, the German people convinced themselves that things were going great and chose to ignore the Nazi “indiscretions” like the imprisonment and killing of Jews and the taking away of their children in the concentration camps.
And others, including Americans, became Nazi sympathizers because there were and are many “nazis” throughout the world and always have been long before there were Nazis. There was an “America First” movement which espoused pro-Nazi ideology. The phrase “Deutschland Uber Alles” roughly translated means “Germany above all else.” Although part of a German song from the 1800s, its resurgence as a slogan in 1930s Germany after the humiliation of the defeat in World War I made its use seem like the Nazis were convincing the German people that they were going to make Germany great again.
It was during this time that Goebbels said that if you tell a lie, if it is big enough and repeated enough, sooner or later people will believe it.
“Fake news” and “no collusion” and that we are making America great again and the constant repetition thereof find their genesis.
To “enable” means to give power, means or ability to or to authorize or make possible or easy. You can “enable” by an affirmative act or by doing nothing when something is needed to be done and you have the power to do something. In Germany at this time, some enabled by affirmative action. They became active Nazis. Some enabled by remaining silent when they had an obligation to speak. They were all a part of the enabling. By acceding to the will of Hitler, the German power structure, and in turn the German people, all enabled the autocratic rule of Adolph Hitler and the Nazis.
And all this started with an election and was accomplished within a framework of the law and within a matter of months thereafter. Once the slope becomes slippery, the slide down it is fast. If this all looks like it is being used as a playbook, it is a playbook with a not very silver lining to it.
Like the townspeople in “High Noon,” most were mostly willing to look the other way when the gang came back to town. Indeed, the hotel owner said that the town thrived when the gang was in power. Even those who voiced even tepid support quickly caved in and abandoned law in favor of their own self-interest. Even the judge. There was no one left to protest or stand up for law. Except Will Kane, who wore a badge symbolizing that he stood for the law. And when the proverbial dust settled and the law prevailed, those same townsfolk who did nothing now tried to embrace Kane but he turned his back on them, threw his badge on the dusty ground of the studio back lot and, with Grace Kelly at his side, left in disgust.
Unlike the movies, however, the law could not prevent Nazism from happening because there was no one who agreed that they wanted law.
All they wanted was order.
Copyright © 2018 Ivan Hoffman. All Rights Reserved.
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Ivan Hoffman has been practicing intellectual property law for over 45 years and has written extensively about that topic. (www.ivanhoffman.com).
This article is not legal advice and is not intended as legal advice. This article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article is based on United States laws but the laws of other countries may be different. You should consult with an attorney familiar with the issues and the laws of your country. This article does not create any attorney client relationship and is not a solicitation.