The Weimar Constitution and the Nazi Legal Revolution
The Weimar Constitution of 1919
The Weimar Constitution (Weimarer Verfassung), adopted by the National Assembly at Weimar on August 11, 1919, and effective from August 14, was the most democratic constitution in German history and one of the most progressive constitutional documents of its era. The constitution established the German Reich as a democratic federal republic with a bicameral legislature: the Reichstag, elected by universal, equal, direct, and secret suffrage of all men and women over twenty; and the Reichsrat, representing the constituent states (Länder). The constitution introduced proportional representation, creating a political system in which numerous parties would compete for seats.
The constitution’s structure reflected the tension between democratic aspirations and the need for executive authority in a period of unprecedented crisis. The Reich President (Reichspräsident), elected directly by the people for a seven-year term, possessed substantial powers including the command of the armed forces, the appointment and dismissal of the Chancellor, and the dissolution of the Reichstag. Most critically, Article 48 granted the President emergency powers: “If public security and order are seriously disturbed or threatened within the German Reich, the Reich President may take measures necessary for the restoration of public security and order, and if necessary, intervene with the assistance of the armed forces.” Article 48 permitted the suspension of the constitution’s fundamental rights provisions, including habeas corpus, freedom of expression, freedom of assembly, and the inviolability of property. The Article required the President to inform the Reichstag of such measures and to revoke them on the Reichstag’s demand, but this parliamentary check proved ineffective in practice.
The Weimar Constitution’s catalogue of fundamental rights was the most elaborate in any constitution of its time. The Second Main Part (Articles 109–165) guaranteed equality before the law, freedom of speech, press, assembly, and association, religious liberty, the right to property (Article 153), and the economic rights of workers — including the right to form trade unions, the right to collective bargaining, and the right to work. Article 151 declared that “the economic order must correspond to the principles of justice.” Article 165 provided for the establishment of workers’ councils and economic councils. The constitution also protected the independence of the judiciary, with judges appointed for life and removable only by judicial decision.
The Crisis of the Weimar Republic
The Weimar Constitution operated under conditions of extreme political, economic, and social stress. The Treaty of Versailles (1919) imposed crushing reparations, territorial losses, and the “war guilt clause” that Germans widely resented. Hyperinflation in 1923 destroyed the savings of the middle class. The Great Depression after 1929 produced mass unemployment — reaching six million by 1932 — and radicalised political opinion.
The political system fragmented with the rise of extremist parties of the left and right. The Communist Party (KPD) sought the revolutionary overthrow of the Republic. The National Socialist German Workers’ Party (NSDAP), led by Adolf Hitler, combined virulent nationalism, antisemitism, and opposition to the Versailles settlement with a quasi-legal strategy for seizing power. The NSDAP’s representation in the Reichstag grew from 12 seats in 1928 to 107 in 1930 and 230 in July 1932 (37 percent of the vote). No party commanded a stable majority, and governments were formed through presidential emergency decrees under Article 48 rather than through parliamentary confidence.
From 1930 onward, the Republic was governed increasingly through Article 48 decrees. Chancellor Heinrich Brüning (1930–1932) governed almost entirely by emergency decree, dissolving the Reichstag when it sought to revoke his measures. His successors, Franz von Papen and Kurt von Schleicher, continued this pattern. By the time Hitler was appointed Chancellor on January 30, 1933, the Republic’s parliamentary institutions had been largely hollowed out, and the constitutional order functioned primarily through the exercise of presidential emergency powers.
The Reichstag Fire and the Enabling Act 1933
The Reichstag fire on February 27, 1933 — a fire of mysterious origin that destroyed the parliament building — provided Hitler with the pretext for the final destruction of constitutional government. The Reichstag Fire Decree (Reichstagsbrandverordnung), issued by President Hindenburg on February 28 under Article 48, suspended the fundamental rights provisions of the Weimar Constitution indefinitely. The decree suspended habeas corpus, freedom of speech, press, assembly, association, and the secrecy of postal and telephone communications. It also authorised the Reich government to assume the powers of the Länder governments and to impose the death penalty for specified offences.
The Reichstag Fire Decree remained in force for the entire duration of the Nazi regime, providing the legal basis for the arrest of political opponents, the suppression of the press, and the establishment of the concentration camp system. The decree was not revoked until 1945.
The Enabling Act (Ermächtigungsgesetz), formally the “Law to Remedy the Distress of People and Reich” of March 24, 1933, completed the legal destruction of the Weimar Constitution. The Act authorised the Reich government to enact laws without the participation of the Reichstag, including laws that deviated from the Constitution, provided they did not affect the institutions of the Reichstag and the Reichsrat or the powers of the President. The Act required a two-thirds majority of Reichstag members present and a two-thirds majority of those voting in the Reichsrat. Hitler secured the necessary votes through the arrest of Communist deputies, the intimidation of Social Democrats, and the support of the Centre Party after receiving assurances (which were not honoured) about the preservation of civil rights.
The Enabling Act passed with 441 votes for and 94 against (the Social Democrats, whose leader Otto Wels declared that “no enabling act gives you the power to destroy ideas that are eternal and indestructible”). The Act was initially limited to four years but was repeatedly renewed, and it became the constitutional foundation of the Nazi regime. The Weimar Constitution was never formally repealed, but it ceased to have operative effect.
Gleichschaltung and the Nazi Legal Order
The Nazi regime implemented Gleichschaltung (coordination) — the systematic elimination of all independent institutions and their subordination to the Nazi Party and its ideology. The process began with the Law for the Coordination of the States with the Reich (Gleichschaltungsgesetz) of March 31, 1933, which dissolved the independent legislative powers of the Länder and placed them under Reich commissioners. The Law on the Reconstruction of the Reich of January 30, 1934, abolished the Länder parliaments entirely and transferred their sovereignty to the Reich. The Law on the Abolition of the Reichsrat of February 14, 1934, eliminated the upper house of the legislature.
The legal profession was rapidly subordinated to the Party. The Law for the Restoration of the Professional Civil Service of April 7, 1933, required the dismissal of Jewish and politically unreliable civil servants and judges. The German Lawyers’ Association was transformed into the National Socialist Lawyers’ Association under Party control. The Law on Admission to the Bar of 1933 excluded Jewish lawyers from the profession. By 1935, the legal profession had been purged of its Jewish and liberal members, and judges were required to be members of the NSDAP or its affiliated organisations.
Nazi legal theory rejected the formal principles of the Rechtsstaat. The leading Nazi jurist, Carl Schmitt, argued that the “decision” (Dezision) of the Führer was the source of law and that legal norms must be interpreted in accordance with the National Socialist worldview (Weltanschauung). The principle that “law is that which serves the German people” replaced the formal rule of law. The German Legal Academy (Akademie für Deutsches Recht), founded by the Nazi jurist Hans Frank in 1933, was charged with developing a “new German law” that would replace the Romanist categories of the BGB with Germanic, National Socialist legal concepts.
The Nuremberg Laws and Anti-Semitic Legislation
The Nuremberg Laws of September 15, 1935 — adopted unanimously by the Reichstag at the annual Nazi Party rally — were the centrepiece of Nazi racial legislation. The Law for the Protection of German Blood and German Honour prohibited marriages and extramarital sexual relations between Jews and Germans, forbade the employment of German women under 45 in Jewish households, and prohibited Jews from flying the Reich flag. The Reich Citizenship Law established that only persons of “German or kindred blood” could be Reich citizens (Reichsbürger), with full political rights; Jews and other non-Germans were reduced to “state subjects” (Staatsangehörige) without political rights.
The Nuremberg Laws were supplemented by extensive implementing regulations that defined who was a Jew — persons with three or four Jewish grandparents, or with two Jewish grandparents who belonged to the Jewish religious community or were married to a Jew — and progressively excluded Jews from economic, professional, and social life. The Aryanisation (Arisierung) of Jewish property transferred Jewish businesses, real estate, and assets to German owners through forced sales at below-market prices. By 1939, virtually all Jewish property had been transferred, and Jews had been excluded from virtually all aspects of public and economic life.
The Volksgerichtshof and Perversion of Justice
The legal system under the Nazis was characterised by the creation of special courts with summary procedures and the elimination of judicial independence. The Volksgerichtshof (People’s Court), established in 1934 under the Law for the Creation of the People’s Court of April 24, 1934, had jurisdiction over high treason, treason, and other political offences. The Court was composed of two professional judges and three “lay judges” selected from Party officials, who voted together on both guilt and sentence. The procedure was summary: there was no right to defence counsel of the defendant’s choice, no right to call defence witnesses, no right of appeal, and decisions were made by simple majority. Between 1934 and 1945, the Volksgerichtshof, under its President Roland Freisler (1942–1945), sentenced approximately 5,200 defendants to death, including the members of the White Rose resistance group and the conspirators of the July 20, 1944, plot against Hitler.
The ordinary courts also applied Nazi principles. Judges were instructed to interpret laws in accordance with “the healthy popular feeling” (gesundes Volksempfinden) and the National Socialist ideology. The Reichsgericht, the supreme court of the Empire, adapted its jurisprudence to Nazi racial ideology, upholding the Nuremberg Laws and applying the “analogy principle” introduced into criminal law in 1935, which allowed punishment for acts that were “worthy of punishment according to the fundamental idea of a penal law and according to healthy popular feeling” even if not specifically prohibited by statute. This principle destroyed the nullum crimen sine lege guarantee that the BGB and the Weimar Constitution had protected.
Post-War Legal Reckoning
The post-war legal reckoning with the Nazi perversion of law occurred through multiple mechanisms. The Nuremberg Trials of 1945–1946, conducted by the International Military Tribunal, prosecuted the major war criminals for crimes against peace, war crimes, and crimes against humanity. The trials established the principle that individuals could be held criminally responsible for state-sanctioned atrocities and that “following orders” was not a defence when the orders were manifestly illegal. The Nuremberg Principles, formulated by the International Law Commission in 1950, became foundational to modern international criminal law.
In Germany, the post-war legal order was reconstructed on the foundations of the Basic Law (Grundgesetz) of 1949, which explicitly repudiated the Nazi legal order. Article 1 of the Basic Law declares that “human dignity shall be inviolable” and that the fundamental rights are “directly enforceable law.” Article 20 establishes the principle of the Rechtsstaat, while Article 79(3) — the eternity clause (Ewigkeitsklausel) — prohibits any amendment that would affect the federal structure, the participation of the Länder in legislation, or the principles of human dignity, democracy, and the Rechtsstaat. The Basic Law was a direct response to the Weimar Constitution’s failure — its most profound weakness, Article 48 — and to the Nazi regime’s destruction of the legal order.