Re-interpretation: have we got the Enabling Act wrong?

On 23 March 1933, in the midst of a (Nazi-created) anti-Communist panic, and with threats of violence, the Reichstag passed the Enabling Act – or, as it was properly called the ‘Law to Remove the Distress of the People and the State’. 

A Reputation as Significant

From its inception, the Enabling Act has been described in hyperbole. 

At the time:

“For four years Hitler can do whatever is necessary to save Germany” (the Nazi newspaper Völkischer Beobachter)

“[It was] the pivotal point of the constitutional structure of the Third Reich … the first organic statute of the Third Reich … it amounted to a complete overthrow of the constitutional order”.  (Loewenstein, 1937)

“[It] represented a most radical departure from the principles of liberal constitutionalism, from the system of norms and customs that limit the state’s legislative power”.  (Neumann, 1942)

For professional historians, it:

“placed all power in the hands of the Hitler’s government”.  (Benz, 2006)

“although Hitler had yet to consolidate power after 1933, the cards had been dealt”.  (Horowitz & Anderson, 2009)

“would become the constitutional foundation upon which Hitler and the National Socialists would erect their dictatorship”.  (Jones, 2011)

“established untrammelled executive authority by removing parliament from political decision-making”.  (McElligott, 2013)

“raised the stakes to total power – Hitler’s alone”.  (Fritzsche, 2021)

And in school textbooks, we are told that it:

“meant that Hitler was to be the complete dictator for the next four years, but since his will was now law he would obviously be able to extend the four-year period indefinitely.  He no longer needed the support of Papen and Hindenburg; the Weimar constitution had been abandoned”.  (1982)

“brought about the destruction of parliamentary democracy and handed all legislative powers over from the Reichstag to the government”.  (1991)

“The Reichstag in effect voted itself out of existence.  It had voted to introduce a Nazi dictatorship.  Through the next eleven years of Nazi rule the Reichstag met twelve times – but simply to listen to Hitler speaking.  They never held a debate.  They had no say on policies”.  (1997)

“would mean that the Reichstag would become a rubber stamp for Nazi activities”.  (2016)

I could have provided more.  The theme is clear: that the Enabling Act gave Hitler a carte blanche to rule at will; that it destroyed parliamentary democracy, introduced a Nazi dictatorship, and was the end of freedom and civil rights in Germany. 

What did the Enabling Act SAY?

But was this the case?  I hesitate to comment, because all these people are intelligent experts, and who am I?  But the ‘Enabling Act’ – which you can read here or here – said no such things. 

It had just five articles, of whch the main three were:

• Article 1 gave the Reich Cabinet the right to make laws. 

• Article 2 set limits to the power of the Cabinet – “laws enacted by the Reich Cabinet may deviate from the Constitution as long as they do not affect the position of the Reichstag and the Reichsrat.  The rights of the President remain undisturbed.”

• Article 5 set an end-date for the law (1937), but stated that “it also becomes invalid if the present Reich Cabinet is replaced by another”. 

You might wonder what all the fuss was about.  By Article 48, the President had the right to rule by decree in times of national danger.  And there had been enabling acts before, in 1920, 1921, 1923 and 1926 which gave sweeping powers to the cabinet (strictly, the 1933 ‘Law to Remove the Distress of the People and the State’ was not THE Enabling Act, but AN enabling act). 

Carl Schmitt, the leading jurist of the time and a member of the Nazi Party, argued that the Enabling Act was “a significant turning point in constitutional history” on the grounds that the 1933 Act allowed the Cabinet not only to impinge on people’s constitutional rights, but to change the constitution.  It was thus an “expression of the victory of the National Revolution”, and “the triumph of facts over legality”. 

The Enabling Act did NOT say what we are told it said

Nevertheless, even if we accept this, even school students should be able to see that the Act did NOT give unrestrained carte-blanche power to Hitler:

• Article 1 gave the right to make laws, not to Hitler, but to the CABINET (and this, remember, was the 1933 Cabinet with just three other Nazi members out of 12 ministers) … and Article 3 assigned the Chancellor merely to ‘drafting’ and ‘publishing’ the laws enacted by the Cabinet;

• Article 2 gave the Cabinet the right only to ‘deviate from’ (note that it did NOT say ‘change’) the Constitution;

• Article 2 also protected the Einrichtung (position/ powers/ institution) of the Reichstag and Reichsrat, and the Rechte (rights) of the President, and

• Article 5 – insisted on by Hindenburg in a last attempt to restrain Hitler – stated that the act would expire “if the present Cabinet becomes replaced by another”; i.e  it gave these powers to the January 1933 Cabinet (with just four Nazi members) and to no other. 

These were protections that even Hitler acknowledged in his introductory speech, as Ian Kershaw reported in his description of the debate:

“At the end of his speech, Hitler made what appeared to be important concessions.  The existence of neither the Reichstag nor the Reichsrat was threatened, he stated.  The position and rights of the Reich President remained untouched.  The Lander would not be abolished.  The rights of the Churches would not be reduced and their relations with the state not altered.” (Kershaw, 1993)

Why is this important?

Now I hear you sighing that all this is academic/ pedantic.  These ‘restraints’ may have been there IN THEORY, and to be sure Hitler mentioned them as he wooed the Centre Party into agreeing.  But they MEANT nothing. 

And you would be correct:

• Almost immediately, the ‘Cabinet’ became a Nazi focus group – before the year-end Hugenberg had resigned (26 June), Gereke was arrested (30 March), and Darré (29 June), Goering & Rust (1 May), and Rohm & Hess (1 Dec) had joined – giving Hitler nine Nazis out of 15 ministers in the Cabinet. 

• Only 6 laws were submitted to the Reichstag in the four years to 1937 – all of them merely to provide Hitler with a public ‘launch’ for key legislation – which were accepted without debate in meetings where Party secretaries filled the empty seats. 

• The Reichsrat was abolished in February 1934, and all the States’ powers transferred to the Reich. 

• And in August 1934, Hitler merged the Presidency into the Chancellorship. 

Loewenstein in 1937 argued that the Act had been passed illegally.  Both Loewenstein and Neumann complained that the Act had been almost immediately invalidated and should have been deemed expired.  Of course their were spitting into the wind … but that is the point. 

Why does this matter?

It matters because the Nazis claimed, and everybody seems to have accepted since:

• that the Enabling Act gave Hitler his unrestricted dictatorial powers: it did not;

• that the Reichstag voted itself out of existence: it did not;

• and that the Enabling Act was the legal foundation of the Nazi totalitarian state: it was not so legally. 

The Enabling Act was a temporary expedient to deal with a crisis, with restraints built in, which was invalidated almost immediately, but which the Nazis used as a pretence of legality. 

In reality, there was no valid legal basis for the Nazi state.  Nazi rule was the triumph of facts over legality – the Nazi state was an illegal tyranny, and the Enabling Act was its lie.