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