From Civil Rights to Civic Death: Dismantling Rights in Nazi Germany

Failure to enact their proposals did nothing to dampen the anti-Semitic enthusiasm of Nazi legislators, who continued their attempts to exclude Jews from the equal protection of the laws. In August 1924 Frick and his colleagues proposed to bar all Jews from holding public office, whether at the Reich, provincial, or local level. They also proposed the expropri­ation without compensation of property belonging to any Eastern Jews, or Ostjuden, who had entered Germany after August 1914. This confisca­tion, Frick promised, would provide a huge windfall to spend on public welfare.^[196] Six years later, in 1930, Nazi legislators finally chose to address directly the question of what they believed to be the racial decline and decomposition of the German Volk. In a foreshadowing of the Blood Protection Law to come five years later, Frick proposed that marriages between Jews and Aryans be forbidden and the penal code be amended to designate “mixing of blood between [Germans and] members of the Jewish community” a crime punishable by imprisonment or, in egregious cases, by death.¹⁵

Frick’s proposals followed in the wake of a series of regional electoral successes that the party scored in the latter half of 1929. Five years of laboring in the wilderness of electoral marginality seemed finally to be producing the possibility of achieving power. Other party leaders also took heart. Late in 1929 the head of the party’s organizational apparatus, Gregor Strasser, added a separate planning section, the Organisationsabteilung II, or OA II, to the party’s Munich headquarters.¹⁶ Its purpose, as reported in the Volkischer Beobachter, was to “consider all the questions related to the party’s development and its policy conceptions, to study them and insure their consistency,” in short, to make policy proposals in prepara­tion for gaining power.¹⁷ To head this new planning body Strasser named his old friend Konstantin Hierl, a retired General Staff officer from World War I, a former Free Corps leader, and a recent convert to the Nazis. Hierl established a planning division of seven sections, including a Domestic Policy Section headed during its most active phase after November 1931 by Helmut Nicolai, a former civil servant dismissed for his Nazi sympathies, and a Legal Section headed by Hitler’s personal lawyer Hans Frank, the founder (in 1928) of the League of National Socialist Jurists (Bund Nationalsozialistischer Deutscher Juristen).

From the outset Nicolai focused his attention on the need for major revisions of the German constitution. He denounced the Weimar consti­tution for its liberal underpinnings and for establishing the misdirected objective of trying to “protect the individual from the state, which is assumed to be the �?enemy’ of the �?free’ human being.”¹⁸ He dismissed Weimar’s assumptions of “basic rights” as a “shallow lie,” amounting to nothing more than a “screen behind which is hidden the notion of �?human rights.’ ” Nicolai saw National Socialism’s task as “restoring to the law that shimmer of sanctity (Heiligkeit) that at one time had been its essence.” He

15 Frick, Die Nationalsozialisten, 63—4. See also Lothar Gruchmann, “Blutschutzgesetz und Justiz,” Vierteljahrshefte fur Zeitgeschichte 31 (1983): 419.

16 See Udo Kissenkoetter, Gregor Strasser und die NSDAP (Stuttgart, 1978), 50; Peter D. Stachura, Gregor Strasser and the Rise of Nazism (London, 1983), 72; Wolfgang Horn, Fuhrerideologie und Parteiorganisation in der NSDAP (Dusseldorf, 1972), 379—84; Dietrich Orlow, The History of the Nazi Party, 2 vols. (Pittsburgh, 1969), 1:180.

17 Volkischer Beobachter, Sept. 12, 1929, 3.

18 Quotations in this paragraph are from Helmut Nicolai, Grundlagen der kommenden Verfassung: Uber den staatsrechtlichen Aufbau des Dritten Reiches (Berlin, 1933), 86—7. believed it “necessary to keep the [new] constitution free of the dishon­est rhetoric expressed in the notion of �?human rights.’ ” Such alleged “basic rights” allowed the self-seeking individual to undermine the state or the Volk and was for that reason “impossible for an organic state to accept” because, he concluded, the Volk must “be seen as the highest earthly good, the obligation of sacrificing for the larger whole knows no bounds.”

It was Hans Frank, later the governor general of Nazi-occupied Poland, who articulated more fully - if not more clearly - the theoretical under­pinnings of Nazi law and its conception of rights. In 1931 Frank estab­lished what became the party’s official legal journal, Deutsches Recht. The lead article in its first issue, titled “The Awakening of German Law,” was by Frank himself. Any consideration of the law, he wrote, must be based on “the concept of the Gemeinschaft.”^[197] “The �?soul of the people’ (Volksseele) must be guaranteed by something we call the �?soul of the law’ (Rechtsseele). The two must grow from the same soil.” Legal conceptions of law and justice in the Weimar Republic were the particular targets of his condemnation. In Weimar, he declared, “Justice has become a whore of the politicians.” He also castigated German justice for its ignorance of racial matters: “The concept of race, of the volkisch community, does not even exist in present-day [1931] German law,” he wrote. The result, he claimed, was disastrous. “When the constitution stipulates that the author­ity of the state derives from the people, this means it derives from the German citizens. If the tennis star [Daniel] Prenn, an Eastern Jew, is a German citizen, he becomes, by definition of German law, a German. He becomes part of the German Volk... in the sense of today’s legal con­ceptions. This is in total contradiction to the legal sensibilities of the Volk, the feelings of the newly awakening German people who reject com­pletely these ideas as a foreign abstraction.”

Frank’s venom was directed most immediately against the classically liberal Weimar conception of law and rights, but it was by implication also directed against the unique and long cherished German ideal of the Rechtsstaat, which, during the nineteenth century, had helped shape a culture of rights sometimes in consonance and sometimes at odds with the classic liberalism of Germany’s western neighbors. The view of the Rechtsstaat as a state whose powers were constrained by law can be traced back to the Middle Ages. The modern version of the doctrine owes its definition (though not its name) to Immanuel Kant (1724-1804). It was Kant who contrasted a government based on law with one given to arbi­trary rule, an Obrigkeitsstaat (autocratic state).^[198] Kant’s version of the rule of law distinguished itself from that of the Middle Ages in that it included an enumeration of the specific rights he believed belonged to every indi­vidual citizen of the state. The rights of citizenship, he wrote, belonged equally to all people, regardless of caste or estate, and also to Jews, although they would be required to cast off the “garment of their old religious practice” in exchange for an enlightened Christianity.^[199] They would then have access to the individual’s rights to liberty, equality, and security of property, essentially the rights John Locke (1632-1704) had enumerated in England a century earlier. Like Locke, Kant saw the state as the guar­antor of those rights, a postulate that placed him in the vanguard of the developing German liberalism.

Unlike Locke, however, Kant did not assign to citizens the clear right to revolt against a state that failed to protect those rights. The result was the introduction into German liberalism of an ambiguity that in the long run served to weaken its understanding of individual rights.^[200] It was an ambiguity that may also have opened the door for German conservatives to adopt the idea of the rule of law as their own. It was the conserva­tive political theorist Adam Muller who, in his Die Elemente der Staatskunst (Elements of Statecraft) of 1809, gave the name Rechtsstaat to Kant’s notion of the rule of law. In doing so, however, he rejected Kant’s Enlight­enment views of the state as overly mechanistic, positing an organic view in its stead. Through Muller, the concept of the Rechtsstaat was reshaped to make it compatible with absolutism and conservatism, so long as their adherents held to an objectively derived set of laws. Lost through Muller was the clear focus Kant had placed on individual rights. As the historian Leonard Krieger has observed about the doctrine of Rechtsstaat, “in due course of time it came to mean all things to all men.”^[201] By the 1840s and 1850s both liberals (for example, Robert Mohl [1799-1875]) and conservatives (for example, Julius Friedrich Stahl [1809-61]) could, and did, invoke its name in the service of incompatible ideological positions.

However protean the Rechtsstaat doctrine had become in the nine­teenth century, it could not be stretched in the twentieth century to embrace Nazi conceptions either of the state or of rights, individual or otherwise. Whether invoked by liberals or conservatives, the doctrine did call for governance by laws objectively arrived at, a proposition that nec­essarily imposed limits on political authority and enlisted it in protecting space for the individual citizen to exercise certain civil freedoms.

The Nazis repudiated both the idea of an objective basis for law and the notion of individual rights or freedoms. Point nineteen of their program demanded the replacement of presumably objective “Roman law, which serves the materialistic world order” with one that was rooted in the common law of Germanic tradition, what Hans Frank called the Volksseele. Frank faulted Roman law because it “does not recognize the concept of �?racial comrade’ [Volksgenosse]” and because it elevated the indi­vidual person, the “civis Romanus,” to its center.^[202] In Roman law, he noted, the individual finds legitimation “not in his being part of a larger whole, but in his being the possessor of certain objectively assigned rights.” Although he did not specify what he was rejecting, he might quite appro­priately have said Rechtsstaat.

The Nazis’ rejection of the Rechtsstaat does not necessarily place them outside the bounds in which questions of rights, law, and society were traditionally discussed in Germany. The rejection of liberalism, with its focus on the individual and “basic rights,” was hardly original to the Nazis; neither was their focus on the duty of the citizen to the larger society. Even the Weimar constitution, it should be noted, spelled out duties as well as rights. Article 133 on “Fundamental Rights and Duties of Germans” obliged all citizens “to render personal services to the state and community.” Moreover, the supposition about the organic nature of society and the primacy of the Gemeinschaft had a long and honorable tradition in German political and social thought.^[203] Nicolai and Frank were both very much aware of that tradition and tried, with the addition of racism, to tailor Nazism to fit into it. This is not to suggest that National Socialist concepts about society and the law were simply the perverted products of a single German cultural and political tradition. Other factors were involved. Hermann Weinkauf, for example, has pointed to the crucial importance of “a crudely misunderstood Darwinism” in shaping the “legal conceptions” (rechtliches Weltbild) of National Socialism, especially those of Hitler.^[204]

For a variety of reasons, large segments of the German public did not seem to be offended by the Nazi conception of rights. Indeed, many Germans could read into the Nazi promise an actual expansion of their own rights. Membership in the Aryan Volksgemeinschaft, after all, meant belonging to a superior race. The benefits of that membership were tan­gible. Suddenly one could be part of an elite destined to rule Germany and, perhaps, much more. Within the Volksgemeinschaft, moreover, the old lines of class and hierarchy were to be transcended. Milton Mayer’s classic interviews in the early 1950s of ten low-level Nazi Party members from Marburg are instructive on this point. A cabinetmaker recalled that by 1935, the year of the Nuremberg Laws, “the difference between rich and poor grew smaller, one saw it everywhere.... A man had a chance.” A schoolteacher agreed: “For the first time in my life I was really the peer of men who in the time of the Kaiser and during Weimar had always belonged to classes lower or higher than my own.” For many of them it seemed to be the best time of their lives. There was even the promise of owning one’s own Volkswagen. “There were wonderful ten-dollar holiday trips for the family in the �?Strength Through Joy’ program, to Norway in the summer and to Spain in the winter, for people who had never dreamed of a real holiday trip at home or abroad.” Testimony like this led Mayer to conclude that during the Third Reich many Germans genuinely “thought they were free.”^[205]

The dark underside to these conceptions of “freedom” was clear from the outset. It included “freeing” the superior Aryan race from the perni­cious yoke of the Jews. For Nazi “freedoms” to be realized it was neces­sary to solve the Jewish problem. During 1932 Nicolai and his domestic policy staff in Strasser’s OA II were particularly active in generating rec­ommendations for an eventual Nazi Jewish policy, some of which would later be reflected in the Nuremberg Laws. Nicolai’s deputy, Ernst von Heydebrand und der Lasa, prepared separate drafts proposing “The Sep­aration of Jews and Other Foreign Elements from the German Volk” and “An Emergency Law Regarding the Expulsion of Eastern Jews.”^[206] The party’s genealogical expert charged with deciding cases of racial eligibil­ity for party membership, Dr. Achim Gercke, prepared a memorandum titled, “Should Jewish Bastards Be Granted Full Citizenship Rights?”^[207] (Gercke’s memorandum is lost, but one can guess the answer.) Heyde- brand also published an article in Frank’s Deutsches Recht proposing a legal distinction between “Reich Germans” (Reichsdeutsche) and “Foreigners in the Reich” (Reichsfremde).^[208] Heydebrand’s recommendation was to deny citizenship to Reichsfremde, whom he defined as anyone who was half­Semitic or non-Aryan. To support his case, he argued for a reinterpreta­tion of the “Equality Article” of the Weimar constitution to deny the rights of some current citizens (Jews and political undesirables) to freedom of movement, eligibility for public office, access to higher edu­cation, and citizenship itself.

We know relatively little more about the party’s planning efforts prior to 1933. Few records from Strasser’s OA II have survived. Nor is there evidence that Hitler ever took its planning work seriously. A brief glance into its workings is provided in a memoir by the head of its Economic Policy Section and, for a time, one of Hitler’s intimates, Otto Wagener.^[209] Wagener was a zealous proponent of economic corporativism, a position that identified him with the self-consciously fascist wing among National Socialist intellectuals.Although he fell out of favor with Hitler even before the party’s seizure of power in 1933, we know from his memoir of at least one piece of advice he gave Hitler on the Jewish question. Probably in late 1931 or early 1932, at a breakfast at the party headquarters in Munich, Wagener advised the Fuhrer that the Jewish problem could be solved quite simply by forbidding any further Jewish immigration into Germany. Given the low birth rate among Jews, Wagener calculated, and without replenishment from abroad, they would be condemned to gradual extinction. Until that happened, he advised Hitler, a Nazi regime would need to do little more than bar Jews from positions in government and watch while the Jewish problem solved itself. No Nazi ever proposed a milder solution to the Jewish problem. Hitler obviously did not consider it adequate.

the NAZIS ASSUME POWER

When Hitler assumed the chancellorship in January 1933 he named Wilhelm Frick to head the Reich’s Interior Ministry, a signal that leg­islative initiatives against Jews were imminent.^[210] There were constitutional hurdles to overcome before any full-blown legislative attack could be undertaken. The swiftness with which the Nazis overcame these hurdles (before April 1933) stunned their supporters and opponents alike. On February 4, five days after coming to power, Hitler used the emergency authority given him by President Paul von Hindenburg to issue the “Decree for the Protection of the German People.” This decree autho­rized the police, at their own discretion, to prohibit any public gather­ings or publications they deemed “calculated to endanger public security or good order.”^[211] Three weeks later, on February 28, in the wake of the previous evening’s Reichstag fire, Hitler used those same presidential powers to nullify the Weimar constitution’s most critical guarantees of personal liberties. With one stroke of his pen, the Fuhrer abolished the freedoms of speech and publication, the rights of assembly and associa­tion, the privacy of postal and telephone communications, and the sanc­tity of the home and private property.^[212]

It took another month for Hitler to acquire his own powers to decree. These came with the Enabling Act of March 23, passed by the new Reichstag elected earlier that month. The ground the Nazis gained in these elections, combined with their coercion of the remaining Reichs­tag opposition, secured for them the two-thirds Reichstag majority required to grant the chancellor (technically the Cabinet) decree powers independent of those residing with Hindenburg. Hitler immediately set about using his new authority to enact legislation on his own.^[213] Within two months he succeeded in gutting the Weimar constitution of the rights and equalities its authors had tried to guarantee in 1919.

The Enabling Law allowed Hitler to tear the constitution’s guarantees of equality from their moorings. He could now declare to be legal that which had been illegal. It was with these decree powers that the Nazis launched their legislative assault on the Jews. On April 7 Frick’s Interior Ministry announced a “Law for the Preservation of the Professional Civil Service.”^[214] It empowered the new regime to dismiss several thousand employees it considered undesirable because of their political affiliations as liberals, socialists, or communists. Jews were targeted no matter what their political affiliation. The law affected far more people than those ordi­narily considered to be civil servants. Judges, university professors, teach­ers, and those employed by the Reich railway, the Reichsbank, and even the Reich postal service were subject to dismissal. The new law also required the Nazis to do what they had once considered a waste of time: They had to define what is a Jew. A subsequent implementation decree attached to the civil service law, issued four days after its promulgation, included the so-called “Aryan Paragraph” that stipulated that “A person is to be regarded as non-Aryan who is descended from non-Aryans, espe­cially Jewish parents or grandparents. This holds true even if only one parent or grandparent is of non-Aryan descent.”^[215] One Jewish grand­mother was enough to classify one as non-Aryan.

Until the Nazis redefined the Jew in the Reich Citizenship Law of 1935, the Aryan Paragraph of 1933 served as their primary legal tool for remov­ing Jews from their positions in German society. Within days of its promulgation the Aryan Paragraph was also attached to a “Law to Prevent Overcrowding of German Schools and Universities,” designed to reduce the number ofJewish students in educational institutions. In June the para­graph was expanded to define as non-Aryan anyone who was married to a Jew. Further legislation during the latter half of 1933 invariably included the Aryan Paragraph. By the end of the year Jews were excluded not only from the civil service and their numbers limited at the universities, they were also barred as medical doctors from participating in the Public Health Insurance Chambers, as journalists from practicing their profession, and as artists from taking part in officially sponsored cultural programs.^[216]

The Aryan Paragraph proved contagious. Its spirit reflected the deep well of anti-Semitism from which the Nazis were drawing. Private clubs and associations swiftly adopted its provisions to purge their membership lists of Jews. In late April 1933 the German Swimming Association was the first to use it to expel Jewish members. The Union of Professional Boxers and the German Tennis Association immediately followed suit. In May the German Gymnastic Union and the German Rowing Associa­tion followed their lead, as did the German Skiing and Chess Associa­tions in June and July. At Freiburg University the Rector Martin Heidegger invoked the Aryan Paragraph to halt tuition remissions and stipend payments to Jewish students.^[217] Meanwhile, the Synod of the German Evangelical Church spent much of the year discussing the appli­cation of the Aryan Paragraph to pastors and church officials.^[218] In Decem­ber the regime itself completed the process by ordering the expulsion of Jews from all sporting clubs.

Radical Nazis insisted that the civil service law was still woefully inad­equate, the Aryan Paragraph notwithstanding. As they understood it, the core of the Jewish problem remained unaddressed. The law dispossessed Jews only of their rights to positions in the civil service. Still left to them were the rights associated with citizenship and, more seriously, their “right,” through marriage, to inject their inferior blood into that of the superior Aryan bloodstream. This core of the “Jewish problem” was at the same time the core of Nazi ideology. In Mein Kampf (1925), Hitler had labeled the mixing of Jewish and Aryan blood as the “original sin” (Ursunde) that, unless arrested, would inexorably lead to the degeneration of the Aryan race, an evil to be prevented only by prohibiting marriage between Jews and Aryans.^[219]

In the wake of the Aryan Paragraph, Nazi radicals began to challenge the continued legality of “mixed marriages” with increasing fervor. Julius Streicher never tired of using his anti-Semitic slander sheet, Der Sturmer, to denounce race mixing in the most pornographic terms. Others took more direct action: Nazi officials at the marriage registry offices (Standesamter), their positions strengthened by the civil service purges, fre­quently refused to grant licenses for such marriages. Some cited the Aryan Paragraph as their justification; others pointed to the basic principles of National Socialism as sufficient authority for their actions. The result was disarray and confusion. Some offices would grant licenses for mixed mar­riages; others would not.

The Weimar constitution no longer offered protection to Jews, its powers to safeguard basic rights having been gutted by the Reichstag Fire Decree and the Enabling Act of early 1933. Nonetheless, it would take the Nazi leadership another two and a half years to resolve the question of mixed marriages. Standing in the way of a resolution were those portions of the German civil code stipulating the rights and duties pertaining to marriage. These proved more difficult for the Nazis to circumvent than had been the constitution. The civil code recognized virtually no impediments to marriage between consenting partners other than an already existing marriage or a too-close blood relation­ship. Foreign opinion also played a major role in hindering Nazi action on so basic and sensitive a matter as the right to marry. The Foreign Office was besieged during these years by foreign governments request­ing explanations or expressing protests regarding Germany’s policies toward Jews.^[220]

Although the civil code undoubtedly was the decisive factor in delay­ing Nazi leaders from resolving the mixed-marriage question, it did nothing to restrain the actions of ardent Nazi officials in the registry offices. By the end of 1933 uneven enforcement of the civil code was producing chaos at the marriage registries.^[221] The situation became suffi­ciently serious to force higher authorities to intervene. In early January 1934 Frick warned all registry officials to refrain from applying the Aryan Paragraph to situations for which it had not been intended, even if it required of them actions that “appear not to conform with National Socialist views.”^[222]

Frick’s admonition failed to repair the situation. In July 1934 a series of court appeals finally led to the Reich’s Supreme Court ruling that marriages between Germans and Jews remained legal and that registry officials should adhere to the law as spelled out in the civil code.^[223] Mean­while, the Justice Ministry began to collect data from the provinces con­cerning the legal history of German-Jewish marriages, discovering in the process that the authorization in civil law for such marriages went back at least as far as the Prussian civil code of 1794.^[224] Clearly, the Justice Min­istry planned an initiative on the question of mixed marriages that would have embedded it in a revised criminal code. On the commission to draft the revised code was the ardent Nazi Roland Freisler, who urged amend­ing the code to criminalize marriages “between those of German blood and members of foreign blood communities.” The crime committed by those concluding such marriages he labeled “racial treason.”^[225]

Frick’s warning in January 1934 and the Supreme Court ruling in July allowing mixed marriages were largely ignored by registry officials. With increasing frequency, local courts decided cases in favor of officials who had refused marriage permits to “racially mixed” couples. In the summer of 1935 a local court in Wetzlar upheld officials in their refusal to allow such a marriage, citing it as a violation of the “sum total of all official and semiofficial pronouncements by the government and the National Socialist Party.”^[226] When a court in Konigsberg decided against officials who had refused to grant a marriage license, its judgment was appealed to a higher court and overturned. The appeals court based its decision on the grounds that the status of the law in 1935 “should not lead to the erroneous conclusion that a form of behavior condemned on the basis of generally held convictions is still permissible and may even be sanctioned in a court of law. No one can doubt that a marriage between a Jew and an Aryan woman is contrary to the German understanding of what is right.”^[227] Hans Frank’s Volksseele had spoken.

The confusion surrounding the question of mixed marriages was not removed until the Nuremberg Laws of September 1935. Yet even these laws resolved only part of the question. Although such marriages no longer could be performed, the question of what to do about the thou­sands of already married couples remained. These, too, violated what the Konigsberg court called the “German understanding of what is right.” Should these marriages now be dissolved? Most right thinking Nazis believed so. Foremost among them was Gerhard Wagner, the leader of the National Socialist Doctors’ Association (Nationalsozialistischer Deutscher Arztebund) and a rabid anti-Semite who led the drive to push the law to what he believed was its logical conclusion.⁵⁰ It was energies like this that drove the Nazi system toward Auschwitz.

Once again Nazi intentions were confounded, at least partially, by the civil code. Paragraph 1333 made the annulment of any marriage extremely difficult, limiting it to instances in which “a spouse, at the [time of] the conclusion of the marriage was mistaken as to the identity of the other spouse or about such personal characteristics of the other spouse as to have deterred him [sic] from concluding the marriage.”⁵¹ Even in these cases the complaint had to be registered within six months of the mar­riage. Party leaders attempted to circumvent this restriction by redefining the point at which the clock began ticking on the six-month limitation. (A suggestion to make the date of the Nuremberg Laws the starting point failed.) Until such time as the courts were completely under Nazi control, the civil code could not be ignored without creating chaos in the whole

body of family law. Not until July 6, 1938, was Paragraph 1333 of the civil code repealed.^[228]

The most self-conscious Nazi reflection on the nature of rights directly and inevitably referred to fears of race mixing. In 1936 two Interior Ministry officials, Wilhelm Stuckart and Hans Globke, co-authored the government’s official Commentary on German Racial Legislation in elabora­tion of the Reich Citizenship and Blood Protection Laws. These laws, they asserted, were rooted in the communal consciousness of a racially homogeneous people, the Volksgemeinschaft in which Germans were bound together by common blood. This Volksgemeinschaft was not the product merely of “the simple adding up of individuals.”^[229] That notion of society they dismissed as the mistaken and outdated assumption associated with liberalism and Marxism. In the new world of National Socialism, the individual found meaning only as a member of the group, in this case the German Volk. Rights resided with the Volk, and its interests always superseded those of the individual. “An individual,” Stuckart and Globke concluded, “is born into membership in a Volk. It is as a consequence of this membership that the individual acquires rights.”^[230] Individuals born outside the blood boundaries of the Volk had no rights, even if they lived within its geographical limits. In fact, they represented a danger to the very existence of the Volk. As such, their total exclusion was justified, and necessary.