“Article 3.—Articles 68 through 77 of the constitution of the Reich do not apply to laws decreed by the government of the Reich.”
Though the Enabling Act expressly repealed only a small portion of the constitution, nevertheless that portion which was repealed cleared the procedural way for the nullification of the rest if and when decrees should be promulgated by “the government.” On 14 July 1933 a law was passed declaring the Nationalsozialistische Deutsche Arbeiterpartei (NSDAP) to be the only political party and making it a crime to maintain or form any other political party.[597] Thus, it was made doubly sure that any legislation thereafter enacted by the Reichstag would be in harmony with the will of the government.
Although the process by which the Hitler regime came into power was tainted with illegality and duress, nevertheless the power thus seized was later consolidated and the regime thereafter did receive the organized support of the German people and recognition by foreign powers. On 30 January 1934, more than 10 months after the enactment of the enabling act, and subsequent to the Reichstag election of 12 November 1933, the Reichstag passed an act by unanimous vote providing that “the sovereign powers of the Laender are transferred to the Reich,” and further providing that “the Reich government may issue new constitutional laws.” The act was regularly signed by Reich President von Hindenburg, and by Reich Chancellor Hitler, and Minister Frick.[598] The provisions of the Enabling Act were renewed by acts of the Reichstag on 30 January 1937 and again on 30 January 1939.
On 14 June 1942, Dr. Lammers, Reich Minister and Chief of the Reich Chancellery, stated that they would “stress the fact that the Fuehrer himself and the Reich cabinet should not be eliminated from the powers of legislation.”
The conduct of the defendants must be seen in a context of preparation for aggressive war, and must be interpreted as within the framework of the criminal law and judicial system of the Third Reich. We shall, therefore, next consider the legal and judicial process by which the entire judicial system was transformed into a tool for the propagation of the National Socialist ideology, the extermination of opposition thereto, and the advancement of plans for aggressive war and world conquest. Though the overt acts with which defendants are charged occurred after September 1939, the evidence now to be considered will make clear the conditions under which the defendants acted and will show knowledge, intent, and motive on their part, for in the period of preparation some of the defendants played a leading part in molding the judicial system which they later employed.
Beginning in 1933, there developed side by side two processes by which the Ministry of Justice and the courts were equipped for terroristic functions in support of the Nazi regime. By the first, the power of life and death was ever more broadly vested in the courts. By the second, the penal laws were extended in such inconclusive and indefinite terms as to vest in the judges the widest discretion in the choice of law to be applied, and in the construction of the chosen law in any given case. In 1933, by the law for the “Protection against Violent Political Acts,” the death sentence was authorized, though not required, as to a number of crimes “whenever milder penalty has been prescribed hitherto.”[599]
On 24 April 1934, the definition of high treason was greatly expanded and the death sentence was authorized, though not required, in numerous instances. The manner in which this law was applied renders it all-important. The following provisions, among others, illustrate the scope of the amended law and the discretionary power of the judge:
“83. Whoever publicly incites to or solicits an undertaking of high treason shall be punished by confinement in a penitentiary not to exceed 10 years.
“Whoever prepares an undertaking of high treason in any other way shall be punished in like manner.
“The death penalty, or confinement in a penitentiary for life, or for not less than 2 years, shall be inflicted: