The period from January 1933 to August 1934 witnessed a breathtaking acceleration of Nazi control over the German state. Hitler’s appointment as Chancellor on 30 January 1933 was constitutional, but the extent to which subsequent events remained within the bounds of legality is fiercely debated. This essay argues that while the Nazis exploited the existing Weimar constitution to dismantle democracy, the process relied heavily on intimidation, violence, and the cynical manipulation of emergency decrees. Legal forms were maintained, but the substance of law was repeatedly broken.
The Legal Framework of the Weimar Constitution
The Weimar Constitution contained a fatal flaw: Article 48, which allowed the President to suspend civil liberties and issue emergency decrees. Hitler understood that this provision could be twisted to eliminate opposition. When the Reichstag Fire occurred on 27 February 1933, President Hindenburg signed the Reichstag Fire Decree the following day. This decree suspended habeas corpus, freedom of speech, and freedom of the press. The decree was technically legal under Article 48, but it was used to arrest thousands of communists and socialists, destroying the electoral landscape before the March 1933 election.
The Enabling Act: The Key ‘Legal’ Instrument
The most significant legal milestone was the Enabling Act (Ermächtigungsgesetz), passed on 23 March 1933. This law transferred legislative power from the Reichstag to Hitler’s cabinet for four years. To secure the required two-thirds majority, the Nazis expelled communist deputies and intimidated Social Democrats. The KPD (Communist Party) seats were already voided under the Reichstag Fire Decree. Even so, the Act required a quorum; the Nazis manipulated parliamentary procedures to ensure passage. Historian Richard J. Evans (2003, p. 354) notes that the Enabling Act “was a piece of constitutional violence, but it was carried out with a careful regard for legal forms.” The Act itself was constitutional – a constitutional amendment could be passed by the Reichstag – but the circumstances of its passage were anything but free. The SA and SS surrounded the building, and the remaining deputies voted under duress.
Gleichschaltung: The Coordination of State and Society
Following the Enabling Act, the Nazis launched Gleichschaltung – the forced co-ordination of all aspects of society. This included the abolition of state parliaments, the disbanding of trade unions, and the banning of political parties. The Law for the Restoration of the Professional Civil Service (7 April 1933) removed Jews and political opponents from government posts. Every step was presented as a legal decree passed under the Enabling Act. Yet the threat of violence was ever-present. The SA carried out mass arrests, beatings, and murders. The prohibition of the SPD in June 1933 and the Law Against the Formation of Parties (14 July 1933) made the Nazi Party the only legal party. Technically, these laws were passed by the cabinet, not the Reichstag, but the Enabling Act had delegated that power. As Ian Kershaw (1998, p. 473) argues, “the regime operated within a framework of pseudo-legality – the forms of law were observed, but its spirit was completely perverted.”
The Night of the Long Knives: Extra-legal Violence
The most blatant departure from legality occurred on 30 June 1934, the Night of the Long Knives. Hitler ordered the murder of SA leaders, including Ernst Röhm, along with conservative opponents like Kurt von Schleicher. These killings had no judicial warrant. At least 85 people were executed, though estimates range higher. After the event, Hitler defended the murders in a speech to the Reichstag, claiming he had acted “as the supreme judge of the German people.” The Reichstag then passed a one-sentence law retroactively legalising the killings (the Law Regarding Measures of State Self-Defence, 3 July 1934). This was a grotesque mockery of law – a retroactive statute that in any rule-of-law state would be invalid. The murders were clearly illegal, but the regime subsequently made them appear legal, demonstrating that law had become a tool of the dictator.
The Death of Hindenburg and the Führer Oath
The final consolidation of power came with the death of President Hindenburg on 2 August 1934. Hitler merged the offices of Chancellor and President, becoming Führer and Reich Chancellor. A plebiscite held on 19 August 1934 confirmed the move, with 90% approval. Legally, the merger required a constitutional amendment, but the cabinet (acting under the Enabling Act) passed the law. The cabinet had no power to amend the constitution regarding the presidency – but by this point, no one challenged them. The army swore a personal oath of loyalty to Hitler, not the constitution. This step completed the transition from a democratic republic to a totalitarian dictatorship. The plebiscite was neither free nor secret, yet it provided a veneer of popular legitimacy.
Historians’ Interpretations
Historians disagree on how to characterise the process. Some, like Karl Dietrich Bracher, emphasise the exploitation of constitutional loopholes, arguing that the Nazis succeeded through “legal revolution”. Others, notably Hans Mommsen, stress the role of terror and the breakdown of legal norms. A synthesis is most convincing: the regime used legal forms when convenient and abandoned them when necessary, always maintaining a façade of legality. The Reichstag Fire Decree, Enabling Act, and Gleichschaltung laws were technically valid, but they were passed under conditions of extreme coercion. The Night of the Long Knives was outright illegal, though later retroactively legitimised.
Conclusion
Hitler’s consolidation of power between 1933 and 1934 was achieved partially through legal means, but only if “legal” is defined as adherence to the letter of the law rather than its spirit. The Nazi regime exploited the Weimar Constitution’s weaknesses, passed laws under duress, and retroactively justified extra-legal violence. By the end of 1934, the law had become whatever the Führer decreed. The process demonstrates how a democracy can be dismantled from within when its legal guardrails are weak and when a determined movement is willing to use a combination of procedural manipulation and brute force.
References
Evans, R.J. (2003) The Coming of the Third Reich. London: Allen Lane.
Kershaw, I. (1998) Hitler 1889–1936: Hubris. London: Allen Lane.
Noakes, J. and Pridham, G. (eds) (1994) Nazism 1919–1945, Volume 1: The Rise to Power 1919–1934. Exeter: University of Exeter Press.
Bracher, K.D. (1971) The German Dictatorship. London: Penguin.
FAQ
Q1: Was the Reichstag Fire Decree legal under the Weimar Constitution?
Yes, President Hindenburg issued it under Article 48, which allowed suspension of civil liberties in an emergency. However, the Nazis used it to arrest opponents before the election, undermining genuine democracy.
Q2: Did the Enabling Act require a two-thirds majority?
Yes. To pass a constitutional amendment, the Reichstag needed two-thirds of members present. The Nazis removed communist deputies and intimidated others to secure the vote, so the process was not free.
Q3: What was the significance of the Night of the Long Knives?
It was an extra-legal purge of SA leaders and political rivals. Hitler later had the Reichstag retroactively approve the murders, showing that the regime could break the law and then rewrite it.
Q4: How did the plebiscite of August 1934 contribute to Hitler’s legitimacy?
It gave a democratic veneer to Hitler’s merger of the presidency and chancellorship. Although the vote was manipulated and conducted under intimidation, it provided international and domestic legitimacy.
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