The Weimar Constitution, although never formally abrogated by the
Nazis, was rendered totally ineffectual by two basic laws, promulgated
within two months after the seizure of power by the party. The first
of these was the "Decree of the Reich's President for the Protection
of the People and State" (document 11-I, _post_ p. 215), issued
February 28, 1933, the day after the Reichstag was burned down. It
suspended "until further notice"[82] articles of the Weimar
Constitution guaranteeing essential democratic rights of the
individual. Thus, according to article I of this decree, "restrictions
on personal liberty, on the right of free expression of opinion,
including freedom of the press, on the right of assembly and the right
of association, and violations of the privacy of postal, telegraphic,
and telephonic communications, and warrants for house-searches, orders
for confiscations as well as restrictions on property, are also
permissible beyond the legal limits otherwise prescribed."[83] The
abrogation by the Nazis of these fundamental rights of democracy has
never been repealed or amended. In fact, this decree represents the
presupposition and confirmation of the police sway established
throughout Germany by the Nazis.[84]
The second basic law, known as the "Enabling Act," the "Law To Remove
the Distress of People and State," of March 24, 1933 (document 11-II,
_post_ p. 217), swept away parliamentary government entirely. By
abrogating the pertinent articles of the Weimar Constitution, it
enabled the Nazi Cabinet under Hitler's chancelorship to appropriate
money and legislate without any responsibility to the Reichstag or any
obligation to respect the Constitution.
The dissolution of democracy in Germany was sealed by the unification
of the authoritarian Nazi Party with the German state. Soon after the
party came to power in 1933, steps were taken to effect and secure
this unity. The process is described by Huber (document 1, _post_ p.
155) as follows:
On July 14, 1933 was issued the law against the formation of
new parties which raised the NSDAP to the only political
party in Germany [document 11-III] ... The overthrow of the
old party-state was accompanied by the construction of the
new movement-state [_Bewegungsstaat_]. Out of a political
fighting organization the NSDAP grew to a community capable
of carrying the state and the nation. This process was
accomplished step by step in the first months after the
National Socialist seizure of power. The assumption of the
office of Chancelor by the Führer of the movement formed the
basis for this development. Various party leaders were
appointed as _Reichsminister_; the governors of the
provinces were national leaders or _Gauleiter_ of the party,
such as General von Epp; the Prussian government officials
are as a rule _Gauleiter_ of the party; the Prussian police
chiefs are mostly high-ranking SA leaders. By this system of
a union of the personnel of the party and state offices the
unity of party and state was achieved.[85]
The culmination of this development was reached in the "Law To
Safeguard the Unity of Party and State," of December 1, 1933 (document
11-IV, _post_ p. 221), which proclaimed the NSDAP "the bearer of the
German state-idea and indissolubly joined to the state." In order to
guarantee the complete cooperation of the party and SA with the public
officials, the Führer's Deputy and the Chief of Staff of the SA were
made members of the Cabinet.
With regard to the relation between the party and the state, Neesse
writes:
The NSDAP is not a structure which stands under direct state
control, to which single tasks of public administration are
entrusted by the state, but it holds and maintains is claim
to totality as the "bearer of the German state-idea" in all
fields relating to the community--regardless of how various
single functions are divided between the organization of the
party and the organization of the state.[86]
To maintain cooperation between the party and state organizations, the
highest state offices are given to the men holding the corresponding
party offices. Gauweiler (document 8, _post_ p. 204) attributes to the
party supreme leadership in all phases of national life. Thus the
state becomes merely an administrative machine which the party has set
up in accordance with and for the accomplishment of its aims:
As the responsible bearer and shaper of the destiny of the
whole German nation the party has created an entirely new
state, for that which sought to foist itself upon her as a
state was simply the product of a deep human confusion. The
state of the past and its political ideal had never
satisfied the longing of the German people. The National
Socialist movement already carried its state within itself
at the time of its early struggles. It was able to place the
completely formed body of its own state at the disposal of
the state which it had taken over.[87]
The official party interpretation of the relation between party and
state, as set forth in the _Party Organization Book_ for 1940, appears
in the Appendix as document 7 (_post_ p. 186).
Goebbels in his lecture on _The Nature and Form of National
Socialism_ (document 2, _post_ p. 170) stressed the importance of
_Gleichschaltung_ or the penetration of Nazi ideology into all fields
of national life. This to his mind must be the result of the National
Socialist revolution. The same aims, ideals, and standards must be
applied to economics and to politics, to cultural and social
development, to education and religion, and to foreign and domestic
relations.
The result of this concept of the totalitarian state has been the
compulsory regimentation of all phases of German life to conform to
the pattern established by the party. The totalitarian state does not
recognize personal liberties for the individual. The legal position of
the individual citizen in the Third Reich is clearly set forth by
Huber (document 1, _post_ p. 155):
Not until the nationalistic political philosophy had become
dominant could the liberalistic idea of basic rights be
really overcome. The concept of personal liberties of the
individual as opposed to the authority of the state had to
disappear; it is not to be reconciled with the principle of
the nationalistic Reich. There are no personal liberties of
the individual which fall outside of the realm of the state
and which must be respected by the state. The member of the
people, organically connected with the whole community, has
replaced the isolated individual; he is included in the
totality of the political people and is drawn into the
collective action. There can no longer be any question of a
private sphere, free of state influence, which is sacred and
untouchable before the political unity. The constitution of
the nationalistic Reich is therefore not based upon a system
of inborn and inalienable rights of the individual.[88]
In place of these rights the constitution of the Third Reich
guarantees to the individual his place in the community of the people:
The legal position of the individual member of the people
forms an entirely new concept which is indispensable for the
construction of a nationalistic order. The legal position of
the individual is always related to the community and
conditioned by duty. It is developed not for the sake of the
individual but for the community, which can only be filled
with life, power, and purpose when a suitable field of
action is insured for the individual member. Without a
concrete determination of the individual's legal position
there can be no real community.
This legal position represents the organic fixation of the
individual in the living order. Rights and obligations arise
from the application of this legal position to specific
individual relationships ... But all rights must be regarded
as duty-bound rights. Their exercise is always dependent
upon the fulfilment by the individual of those duties to
which all rights are subordinate ...[89]
The concept of private property in the totalitarian state is also at
variance with the democratic concept of private property. In the
Third Reich the holder of property is considered merely as a manager
responsible to the _Volk_ for the use of the property in the common
interest. Huber sets forth the Nazi view in the following words:
"Private property" as conceived under the liberalistic
economic order was a reversal of the true concept of
property. This "private property" represented the right of
the individual to manage and to speculate with inherited or
acquired property as he pleased, without regard for the
general interests ... German socialism had to overcome this
"private," that is, unrestrained and irresponsible view of
property. All property is common property. The owner is
bound by the people and the Reich to the responsible
management of his goods. His legal position is only
justified when he satisfies this responsibility to the
community.[90]
Pursuant to this view of the nature of ownership, property may be
confiscated whenever the state decides that public management would be
in the interests of the community, or if the owner is found guilty of
irresponsible management, in which case no compensation is paid him.
Reference has been made to the appointment of party members to
important state offices. Gauweiler (document 8, _post_ p. 204) points
out that the party insured the infusion of the entire structure
of the state with its ideology through the civil-service law
(_Beamtengesetz_) of January 26, 1937,[91] which provides that a
person appointed to a civil-service position must be "filled with
National Socialist views, since only thus can he be an executor of the
will of the state which is carried by the NSDAP. It demands of him
that he be ready at all times to exert himself unreservedly in behalf
of the National Socialist state and that he be aware of the fact that
the NSDAP, as the mouthpiece of the people's will, is the vital force
behind the concept of the German state."[92]
The infiltration of party members into the civil service has now
proceeded to such a point that early in 1942 Pfundtner, the Secretary
of State in the German Ministry of the Interior, could write in the
periodical _Akademie für deutsches Recht_:
The German civil servant must furthermore be a National
Socialist to the marrow of his bones and must be a member of
the party or of one of its formations. The state will
primarily see to it that the Young Guard of the movement is
directed toward a civil-service career and also that the
civil servant takes an active part in the party so that the
political idea and service of the state become closely
welded.[93]
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