The "Enabling Act" (March 24, 1933)

Hitler had decided to build his dictatorship through a largely legal process. His next important step along that road was to emasculate the Reichstag by transferring its legislative authority to the Reich government. Such a fundamental change to the Weimar Constitution required a two-thirds majority, however. When, after eliminating the Communists, Hitler was still 31 votes short, he persuaded the German Center Party to approve this measure. During the Reichstag session in Berlin’s Kroll Opera House on March 23, 1933, Hitler falsely claimed that this new law was not tantamount to the abolition of the Reichstag, since he would use his new legislative authority over the next four years only in emergencies.

Kroll Opera House from front side view

Law to Remove the Distress of the People and the State (The Enabling Act)

The Reichstag has passed the following law, which is, with the approval of the Reichsrat, herewith promulgated, after it has been established that it meets the requirements for legislation altering the Constitution.

Article 1. National laws can be enacted by the Reich Cabinet as well as in accordance with the procedure established in the Constitution. This also applies to the laws referred to in Article 85, Paragraph 2, and in Article 87 of the Constitution.

Article 2. The national 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 powers of the President remain undisturbed.

Article 3. The national laws enacted by the Reich Cabinet shall be prepared by the Chancellor and published in the Reichsgesetzblatt. They come into effect, unless otherwise specified, the day after their publication. Articles 68-77 of the Constitution do not apply to the laws enacted by the Reich Cabinet.

Article 4. Treaties of the Reich with foreign states which concern matters of national legislation do not require the consent of the bodies participating in legislation. The Reich Cabinet is empowered to issue the necessary provisions for the implementation of these treaties.

Article 5. This law becomes effective on the day of its publication. It becomes invalid on April 1, 1937; it also becomes invalid if the present Reich Cabinet is replaced by another.

Reich President von Hindenburg
Reich Chancellor Adolf Hitler
Reich Minister of the Interior Frick
Reich Minister for Foreign Affairs Baron von Neurath
Reich Minister of Finances Count Schwerin von Krosigk

Cabinet Discussion of the Reichstag Fire and Necessary Changes in the Law (March 7, 1933)

Marinus Van Der Lubbe

On March 7, 1933, two days after the elections, the new cabinet discussed the fate of the arsonist Marinus van der Lubbe. The following excerpt reveals the general contempt that the new government felt for the constitutional state [Rechtsstaat]. But it also shows how limited Hitler’s power still was at this point. At his later trial, van der Lubbe was sentenced to death for treason and arson.



[ . . . ]

The Reich Minister of the Interior [Frick] spoke about the Reichstag fire and the punishment of the culprits, and stated that it was urgently necessary to hang van der Lubbe at once, and that this needed to happen on Königsplatz at that. To be sure, the law that currently applied to arson only provided for a prison sentence, but it had to be possible to impose the penalty of death by hanging for such a heinous crime and to apply it retroactively. The principle of nulla poena sine lege should not be applied without restriction. Professor Dr. Nagler (Breslau), Professor Dr. von Weber (Jena), and Professor Dr. Öttler (Würzburg) had rendered opinions to this effect.

The Reich Minister of the Interior then reported on the substance of the opinions as enclosed.

The Chancellor stressed the fact that, in his opinion also, it was urgently necessary to hang van der Lubbe. The German public absolutely expected this. He could not recognize the doctrine of “the law must be observed,” if the entire national life had to perish as a result.

Reich Minister Göring stated that the Reichstag fire had been previously announced at four different places. Whether the person arrested at the Belgian border had any connection with the deed was still uncertain. In the meantime, however, it had become known that van der Lubbe had already been summoned to court three times in Holland.

He [Göring] had seized the Karl Liebknecht House. A special commission for the struggle against the German Communist party was to be installed there.

The attempt planned on the life of the Chancellor in Königsberg was serious. It had been carefully prepared. Three persons had also been arrested. It was necessary to await the results of the investigation.

The Reich Chancellor stated that, as far as his person was concerned, he had no fears of assassination. The consequences of a successful attempt would, however, be terrible for the public. In that event, 100,000 Communists would probably be killed.

State Secretary Dr. Schlegelberger stated that he agreed entirely with the view of the Reich Chancellor that the law had to be adjusted to the circumstances.

A preliminary investigation of van der Lubbe had opened today (March 7) on grounds of high treason and arson.

He had to refer very emphatically to the doctrine of nulla poena sine lege. Only in Russia, China, and some small Cantons of Switzerland did this doctrine not apply. He would again study carefully the opinion mentioned by the Reich Minister of the Interior. The Reich Ministry of Justice would then, for its part, prepare an opinion and send both opinions to the Reich Ministers for their information.

State Secretary Dr. Meissner said that the statements of the Chancellor were entirely correct from a political perspective. The public was right in demanding a severe punishment for van der Lubbe.

The Reich President [Hindenburg], however, might twice suffer severe qualms of conscience, namely, if he were to sign an order prescribing the death penalty, etc., and then again if he were to decide later on to pardon the condemned man. He asked that the Reich Chancellor, the Reich Minister of the Interior, and the Reich Minister of Justice [Gürtner] submit the matter to the President before there was a final decision by the Cabinet.

Reich Commissar Dr. Popitz stated that he was afraid that the Reich Supreme Court [Reichsgericht] would not recognize the validity of a retroactive order prescribing the death penalty.

The Chancellor stated that he would get in touch with the President of the Reich Supreme Court about this.

It was expected that the Chancellor would first speak alone with the President concerning the matter.

[ . . . ]

Decree of the Reich President for the Protection of the People and State ("Reichstag Fire Decree") February 28, 1933

Content of Reichstag Fire Decree

The Reichstag fire gave Hitler the welcome opportunity to eliminate any and all political opposition. The next day, he persuaded President Hindenburg (1847-1934) to issue the “Decree of the Reich President for the Protection of the People and State” (or the “Reichstag Fire Decree”). It suspended most of the basic rights of the Weimar Constitution and tightened the Reich's control over state governments. Thousands of Communists and Social Democrats were arrested and their meetings and papers were outlawed, but the National Socialist election campaign proceeded unhindered. Despite the decree, the Nazi Party was still unable to capture an absolute majority in the Reichstag elections of March 5, 1933. With 43.9% of the votes, it still needed the German National People’s Party [Deutschnationale Volkspartei, DNVP] as a coalition partner.


Decree of the Reich President for the Protection of the People and State of 28. February 1933

On the basis of Article 48, Section 2, of the German Constitution, the following is decreed as a defensive measure against Communist acts of violence that endanger the state:

§ 1
Articles 114, 115, 117, 118, 123, 124, and 153 of the Constitution of the German Reich are suspended until further notice. Thus, 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 permissible beyond the legal limits otherwise prescribed.

§ 2
If any state fails to take the necessary measures to restore public safety and order, the Reich government may temporarily take over the powers of the highest state authority.

§ 3
State and local authorities must obey the orders decreed by the Reich government on the basis of § 2.

§ 4
Whoever provokes, appeals for, or incites the disobedience of the orders given out by the supreme state authorities or the authorities subject to them for the execution of this decree, or the orders given by the Reich government according to § 2, can be punished – insofar as the deed is not covered by other decrees with more severe punishments – with imprisonment of not less than one month, or with a fine from 150 to 15,000 Reichsmarks.

Whoever endangers human life by violating § 1 is to be punished by sentence to a penitentiary, under mitigating circumstances with imprisonment of not less than six months and, when the violation causes the death of a person, with death, under mitigating circumstances with a penitentiary sentence of not less than two years. In addition, the sentence may include the confiscation of property.

Whoever provokes or incites an act contrary to the public welfare is to be punished with a penitentiary sentence, under mitigating circumstances, with imprisonment of not less than three months.

§ 5
The crimes which under the Criminal Code are punishable with life in a penitentiary are to be punished with death: i.e., in Sections 81 (high treason), 229 (poisoning), 306 (arson), 311 (explosion), 312 (flooding), 315, paragraph 2 (damage to railways), 324 (general public endangerment through poison).

Insofar as a more severe punishment has not been previously provided for, the following are punishable with death or with life imprisonment or with imprisonment not to exceed 15 years:

1. Anyone who undertakes to kill the Reich President or a member or a commissioner of the Reich government or of a state government, or provokes such a killing, or agrees to commit it, or accepts such an offer, or conspires with another for such a murder;

2. Anyone who under Section 115, paragraph 2, of the Criminal Code (serious rioting) or of Section 125, paragraph 2, of the Criminal Code (serious disturbance of the peace) commits these acts with arms or cooperates consciously and intentionally with an armed person;

3. Anyone who commits a kidnapping under Section 239 of the Criminal Code with the intention of making use of the kidnapped person as a hostage in the political struggle.

§ 6
This decree enters into force on the day of its promulgation.

Berlin, 28. February 1933

The Reich President von Hindenburg
The Reich Chancellor Adolf Hitler
The Reich Minister of the Interior Frick
The Reich Minister of Justice Dr. Gürtner

Rudolf Diels, Head of the Prussian Political Police, on the Reichstag Fire of February 27, 1933 (Retrospective Account, 1949)

In preparation for the Reichstag elections of March 3, 1933 (which were supposed to pave the way for the legal establishment of the Nazi dictatorship), Hitler ordered the near-complete elimination of the political opposition, especially his fiercest ideological opponents, the Communists. He was helped in this by the German population's general anti-Bolshevist sentiments, which he systematically stoked during the election campaign. With the appointment of Hermann Göring as acting Prussian Minister of the Interior, Hitler gained control over the police force of that state, and he used this power to persecute Communists, Social Democrats, and other political opponents. He justified his actions by alleging that these groups were engaged in treasonous activities. For example, the Nazis claimed that their search of the Karl Liebknecht House in Berlin on February 24, 1933, had yielded evidence of plans for an imminent Communist revolution. Given the skeptical stance of the public toward such pronouncements, it was a fortuitous coincidence that the police were able to arrest the mentally unstable Dutch Communist Marinus van der Lubbe (1909-1934) outside the burning Reichstag on February 27, 1933. His subsequent trial produced no evidence of a Communist conspiracy. But the following account by Rudolf Diels (1900-1957), head of the Prussian political police, makes clear that the Nazi leadership was determined to present the Reichstag fire as incontrovertible evidence of a Communist plot and to use it as a pretext for eliminating the political opposition once and for all.

The following excerpt was originally published in Diels’s 1949 autobiography, a rich source of information on the early phase of the Nazi dictatorship. On account of its apologetic tone, however, the autobiography should be approached critically.

Rudolf Diels

[ . . . ]

When I pushed my way into the burning building with [my old colleague] Schneider, we had to climb over the bulging hoses of the Berlin fire brigade, although, as yet, there were few onlookers. A few officers of my department were already engaged in interrogating Marinus van der Lubbe. Naked from the waist upwards, smeared with dirt and sweating, he sat in front of them, breathing heavily. He panted as if he had completed a tremendous task. There was a wild triumphant gleam in the burning eyes of his pale, haggard young face. I sat opposite him in the police headquarters several times that night and listened to his confused stories. I read the Communist pamphlets he carried in his trouser pockets. They were of the kind which in those days were publicly distributed everywhere. And from the primitive hieroglyphics of his diary I tried to follow his trips down to the Balkans.

The voluntary confessions of Marinus van der Lubbe prevented me from thinking that an arsonist who was such an expert in his folly needed any helpers. Why should not a single match be enough to set fire to the cold yet inflammable splendour of the Chamber, the old upholstered furniture, the heavy curtains, and the bone-dry wooden panelling! But this specialist had used a whole knapsack full of inflammable material. He had been so active that he had laid several dozen fires. With a firelighter, the 'Industrious Housewife', he had set the Chamber aflame. Then he had rushed through the big corridors with his burning shirt which he brandished in his right hand like a torch to lay more fires under the old leather sofas. During this hectic activity he was overpowered by Reichstag officials.

He also confessed to several smaller arson attacks in Berlin, the mysterious cause of which had aroused the attention of the Criminal Investigation Department. Several details suggested that Communist arsonists who had helped him in Neukölln and the Berlin Town Hall might have helped him with the Reichstag. The interrogating officers had pointed their investigations in this direction. But meanwhile things of a quite different nature had happened.

Shortly after my arrival in the burning Reichstag, the National Socialist elite had arrived. Hitler and Goebbels had driven up in their large cars; Göring, Frick and Helldorf arrived; Daluege, the police chief, was not there.

One of Hitler's chief adjutants came to look for me in the maze of corridors, now alive with the fire brigade and the police. He passed me Göring's order to appear in the select circle. On a balcony jutting out into the Chamber, Hitler and his trusty followers were assembled. Hitler stood leaning his arms on the stone parapet of the balcony and stared silently into the red sea of flames. The first hysterics were already over. As I entered, Göring came towards me. His voice was heavy with the emotion of the dramatic moment: 'This is the beginning of the Communist revolt, they will start their attack now! Not a moment must be lost!'

Göring could not continue. Hitler turned to the assembled company. Now I saw that his face was purple with agitation and with the heat gathering in the dome. He shouted uncontrollably, as I had never seen him do before, as if he was going to burst: 'There will be no mercy now. Anyone who stands in our way will be cut down. The German people will not tolerate leniency. Every Communist official will be shot where he is found. The Communist deputies must be hanged this very night. Everybody in league with the Communists must be arrested. There will no longer be any leniency for Social Democrats either.'

I reported on the results of the first interrogations of Marinus van der Lubbe–that in my opinion he was a maniac. But with this opinion I had come to the wrong man; Hitler ridiculed my childish view: 'That is something really cunning, prepared a long time ago. The criminals have thought all this out beautifully; but they've miscalculated, haven't they, Comrades! These gangsters have no idea to what extent the people are on our side. They don't hear the rejoicing of the crowds in their rat holes, from which they now want to emerge', and so it went on.

I pulled Göring aside; but he did not let me start. 'Police on an emergency footing; shoot to kill; and any other emergency regulations which might be appropriate in such a case.' I said again that a police radio message would be sent to all police stations in his name, putting the police in a state of alert and ordering the arrest of those Communist officials whose imprisonment had been intended for some time in the event of a ban on the Party. Göring was not listening: 'No Communist and no Social Democrat traitor must be allowed to escape us' were his last words. When I met Schneider again I tried to collect my thoughts:

'This is a mad-house, Schneider, but apart from that the time has come: all Communist and Social Democrat officials are to be arrested, big raids, a state of alert and all that goes with it!'

Schneider forgot the Social Democrats when he passed on Göring's order as a radio message. When I returned to the 'Alex' after midnight it was buzzing like a beehive. The alerted operational battalions of the police stood lined up in long rows in the entrance drives with steel helmets and rifles. While squad vans arrived and whole troops of detectives with registers prepared many years before jumped on the ramps, joined by uniformed officers, the first cars were arriving back at the entrance of the building with dazed prisoners who had been woken up from their sleep.

[ . . . ]

Georg von Schnitzler on Hitler’s Appeal to Leading German Industrialists on February 20, 1933 (Affidavit, November 10, 1945)

Hitler did not intend to share his power with coalition partners. After the dissolution of the Reichstag, he hoped to win an absolute majority for the NSDAP with a massive election campaign. To finance the electoral battle, he sought support from Germany’s leading industrialists. In a meeting held on February 20, 1933, Hitler and Hermann Göring (1893-1946) explained the benefits that industry leaders would derive from an NSDAP victory: political stability, the complete elimination of the Communist threat and, not least, a lucrative rearmament policy.

Among those present at the meeting was George von Schnitzler, a board member of I.G. Farben, then the world’s largest chemical conglomerate. (I.G. Farben would eventually go on to produce the Zyklon B gas used in Nazi death camps). In the following affidavit, given in English on November 10, 1945, Schnitzler describes the purpose of the meeting and provides the names of others in attendance that day.

Schnitzler, who in his later capacity as Chairman of the company’s Chemical Committee [Chemikalienausschuss] was responsible for exploiting the Polish and French chemical industries, was sentenced to a five-year prison term at the I.G. Farben Trial of 1947-48. He was released after one year, however.

Georg von Schnitzler

Affidavit of Georg von Schnitzler

I, Georg von Schnitzler, a member of the Vorstand of I.G. Farben, make the following deposition under oath:

At the end of February 1933, 4 members of the Vorstand of I.G. Farben including Dr. Bosch, the head of the Vorstand, and myself were asked by the office of the president of the Reichstag to attend a meeting in his house. The purpose of which was not given. I do not remember the two other colleagues of mine who were also invited. I believe the invitation reached me during one of my business trips to Berlin. I went to the meeting which was attended by about 20 persons who I believe were mostly leading industrialists from the Ruhr.

Among those present I remember:

Dr. Schacht, who at that time was not yet head of the Reichsbank again and not yet Minister of Economics.

Krupp von Bohlen, who in the beginning of 1933 presided the Reichsverband der Deutschen Industrie which later on was changed in the semi-official organization "Reichsgruppe Industrie".

Dr. Albert Vogler, the leading man of the Vereinigte Stahlwerke.

Von Lowenfeld from an industrial work in Essen.

Dr. Stein, head of the Gewerkschaft Auguste Victoria, a mine which belongs to the I.G. Dr. Stein was an active member of the Deutsche Volkspartei.

I remember that Dr. Schacht acted as a kind of host.

While I had expected the appearance of Göring, Hitler entered the room, shook hands with everybody and took a seat at the top of the table. In a long speech he talked mainly about the danger of communism over which he pretended that he had just won a decisive victory.

He then talked about the “Bundnis” (alliance) into which his party and the Deutsch-Nationale Volkspartei had entered. This latter party in the meantime had been reorganized by Herr von Papen. On the end he came to the point which seemed to me the purpose of the meeting. Hitler stressed the importance that the two aforementioned parties should gain the majority in the coming Reichstag election. Krupp von Bohlen thanked Hitler for his speech. After Hitler had left the room, Dr. Schacht proposed to the meeting the raising of an election fund of – as far as I remember – RM 3,000,000. The fund should be distributed between the two “Allies” according to their relative strength at the time being. Dr. Stein suggested that the Deutsche Volkspartei should be included which suggestion when I rightly remember was accepted. The amounts which the individual firms had to contribute were not discussed.

I did not take part in the discussion but reported the matter the next day or the overnext to Dr. Bosch in Frankfurt who together with Geh. Rat Schmitz had reserved exclusively for themselves the handling of distribution of money to political parties, the press etc. and had made a special appoint of "Vertraulichkeit" (secrecy) in this respect.

Dr. Bosch did, as far as I remember, not make any remark to my report, but shrugged his shoulders.

I never heard again of the whole matter but I believe that either the buro of Göring or Schacht or the Reichsverband der deutschen Industrie had asked the office of Bosch or Schmitz for payment of I.G.'s share in the election fund. As I did not take the matter up again I not even at that time knew whether and which amount had been paid by the I.G. According to the volume of the I.G. I should estimate I.G.'s share being something like 10% of the election fund, but as far as I know there is no evidence that I.G. Farben participated in the payments.

I understand the English language.

G. von Schnitzler

Cabinet Discussion on Budget Priorities (February 8, 1933)

After being named Reich Chancellor on January 30, 1933, Adolf Hitler (1889-1945) was determined to put the political ideas he had formulated in 1924 in Mein Kampf into practice. His most important goals were the racial “upbreeding” of the German people [Volk] and the conquest of "living space" [Lebensraum] in Eastern Europe, the latter of which he viewed as an urgent necessity. Since Germany was weak both economically and militarily, Hitler concentrated at first on revising the Versailles Treaty and promoting economic recovery and the rearmament that was connected with it. Parliamentarianism and democracy as established during the Weimar Republic soon proved stumbling blocks, however, so Hitler abolished them during the first few months of his rule and replaced them with unrestricted measures that would ensure the definitive restoration of Germany’s capacity for self-defense. These measures included the "Reichstag Fire Decree" and the "Enabling Act."

The minutes of the cabinet meeting of February 8, 1933, suggest that Hitler planned to subordinate all domestic and economic policy measures to his military preparations. By this time, he had already dissolved the Reichstag and issued an emergency decree limiting both freedom of the press and assembly.

Extract from the Minutes of the Conference of Ministers, Held at the Reich Chancellery, on February 8, 1933


The Reich Minister of Transport [Freiherr von Eltz-Rübenach] [ . . . ] proposed that 2.5 million reichsmarks be appropriated in the budget of the Ministry of Transport for 1933 as a first installment for the construction of a reservoir on the Malapane [River] near Turawa [in Upper Silesia].

The Reich Minister of Finance replied that it would be very difficult for the Reich Cabinet to decide at this time whether the approval of these funds would be justified from the point of view of the total budget.

[ . . . ]

The Reich Chancellor stated that in judging the request by the Minister of Transport, another decisive consideration had to be taken into account. Germany was now negotiating with foreign countries about her military equality of rights. The recognition of a theoretical equality of rights was sure to follow in the very near future. But Germany could not content herself with that. This theoretical recognition must be followed by practical equality of rights, i.e., by German rearmament. The world, especially France, was entirely prepared for German rearmament and regarded it as a matter of course. The next five years in Germany had to be devoted to rendering the German people capable of bearing arms once again [Wiederwehrhaftmachung]. Every publicly sponsored measure to create employment had to be considered from the point of view of whether it was necessary with respect to rendering the German people capable of bearing arms for military service. This had to be the dominant thought, always and everywhere.

The Reich Minister of Labor supported these statements of the Reich Chancellor, but said that besides the purely military tasks there was also other economically valuable work that ought not to be neglected.

The Reich Minister of Transport pointed out that the development of German waterways was also a military necessity. In case of an emergency, the entire German traffic system had to be in order, and this included the operation of the waterways.

The Reich Commissioner for Air felt he had to emphasize on the other hand that the improvement of the German highway system was even more important.

The Reichswehr Minister expressed the point of view that in the first place the immediate needs of the Army had to be considered. The German Army was disarmed to such an extent that the foremost necessary was to provide the material foundation for armaments. Only after the emergency armament had been completed would it be possible to tackle larger tasks.

The Reich Chancellor again stressed that for the next 4-5 years the main principle must be: everything for the armed forces. Germany's position in the world was decisively dependent upon the position of the German armed forces. The position of the German economy in the world was also dependent on that.

The Reich Cabinet decided to have the total budget for 1933 submitted first, then to examine what could be done especially for the armed forces, and finally to see what funds were left for the development of the waterways, especially for the building of a reservoir in Upper Silesia, now under discussion.