The cabinet assumed responsibility [for all orders and directives issued by the Reich President] to the Reichstag by countersigning them, and the Reichstag could react rather disagreeably; the cabinet, if the Reich President and the Reichstag were of different opinions, was forced to make a decision. If the cabinet took the opinion of the Reichstag, then the Reich President either had to give in or change the cabinet; if the cabinet went along with the President, then nothing else was left than to risk the vote of lack of confidence; an essential vote of the Reichstag could lead, therefore, to a struggle of that kind, and in German practice the cabinet which went with the president against the Reichstag was called a “fighting government” [Kampfregierung]; not the other way around. In the long run it showed that the Reich President, when the Chancellor went with him, was stronger than the Reichstag. That also I may be permitted to describe briefly. If the Reichstag did not agree with the president, was not satisfied with the president’s decisions, it could not, properly speaking, do anything. Even though the constitution in article 43[150] reserved to the Reichstag the right to ask the people of the Reich that they demand the resignation or the dismissal of the president. That, in practice, never occurred, and for a very simple reason. If the Reichstag would have come to a decision of that kind, and the people would not have gone along, then that president would have been automatically reelected for another 7 years, and also, the Reichstag would have been dissolved, and that would mean suicide [for the Reichstag]. However, the president is in a much better position; if he is in agreement with the Chancellor, he can dissolve the Reichstag himself. That is where the famous red folder comes in.[151] If, therefore, the president and the cabinet are in agreement, and there is a threat of censure on the part of the Reichstag, then the president can turn over to the Reich Chancellor the order for dissolution [of the Reichstag]. The Reich Chancellor is present in the session, and when it comes to the last, he just shows that red folder and that settles the entire matter. Now, the Tribunal will certainly understand why in discussing article 48, paragraph 2, I did not even read paragraph 3,[152] because there it is expressed that the Reich President has to notify the Reichstag of every dictatorial measure and if the Reichstag wants it withdrawn, and the demands are made of the president, the president has to repeal his measures. If he and the cabinet do not wish to do that, they have the possibility of dissolving the Reichstag, and that brings me back to what I pointed out before. Maybe one cannot understand why the Reichstag permitted itself to be dispossessed, as far as legislation is concerned. It would have had to be made entirely different to be in a position to oppose due to the fact that the major change could not depend upon them. The Reichstag in every demand of repeal risked its own life.
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Perhaps at this moment I can jump ahead into the Hitler era. When the Hitler government had received the right to pass laws it no longer needed the Reichstag. If one wanted to use the Reichstag at all as a legislative body, one did so to save face. But, now the government did no longer make any suggestions as was, in former times, the normal procedure. The government was the legislator itself. But that way was chosen; a way, which during the Weimar era played no part.
Under Hitler the Reichstag since November 1933, consisted only of one faction. That is just as senseless as one party. This faction introduced a bill with the name of Adolf Hitler and three others. Frick, the faction chairman accomplished this, Goering acted surprised, being the president, and then, the whole game went on as you know it. That abnormal way, therefore, was chosen in order to stage the play. Now I go back to the Weimar era. As to whether the bill was introduced this way or that way, for the Reichstag, that was only raw material. It could say, “We will not do anything.” It could say, “We will pass it.” It could say, “We will change it.” If a bill is passed, it means that the bill is accepted or amended; then the Reich President received the law which was had been passed by the Reichstag for his signature. Signing a law, that meant as to whether the law was passed in the proper way, and as to whether the text which had been submitted to the president was actually the text which was passed under the law by the Reichstag. (It did, in effect, happen that other documents were submitted to him than those passed by the Reichstag, of course, by mistake. Next, the Reichsgesetzblatt had to publish it with a special wrapper in the changed form.) And when that happened, then, the president gave the order for promulgation. In Germany we usually call it promulgation, too. So far so good.
So much so good. But, now, it could happen that the Reich council or the Reich President with the consent of the government or the government with the consent of the president or some of the members of the Reichstag, itself, were dissatisfied with the law, and, in that case, the constitution provided that those unsatisfied persons or bodies could appeal to the people. That is very complicated, Your Honors, and I do not think that we need it for our purpose here. You will find it written down but I don’t think I need to elaborate on it here.
If such an appeal would have been made to the nation—it never happened, it got stuck in the beginning—then that had to be fought out at the time between signature and promulgation. But the constitution had provided for a special procedure, an act of absolute democracy became possible—the people of the Reich, that is to say, at least one-tenth of the whole electorate,—at that time, that was at least four million voters—could join together and demand that a bill which had to be drafted up to the very last [detail], was to be submitted by the Reichstag, and, in that case, the Reichstag was not as free toward the draft as in the other case. But it was under pressure of an ultimatum. It was only left with the choice either to accept it as it was or the government had to ask the nation. That was attempted a few times but it was never carried out properly.
I should assume that those remarks were sufficient to show to the Tribunal that on the one hand the Weimar constitution was very democratic, with the intent to protect the people and its rights; but that on the other hand the constitution was so complicated in the structure of the bodies and in the legislative procedure, that one need not wonder if an ever stronger movement urged for simplification. Furthermore, the constitution in itself had something unclarified, something provisional and that in severe respects and that always happens if a dualism is created; for every dualism of power endeavors at its own dissolution. * * * We had, furthermore, the small dualism between Reich President and Reich Chancellor; and, I haven’t mentioned that yet, there was the old grave German problem of dualism between Reich and Laender; all these various problems of dualism were urging for dissolution and they were in process of dissolution prior to Hitler. Hitler then completed that development. May I explain that in a few remarks?
First of all, the dualism between Reichstag and Reich President was abolished. The Reich President is the victor. Under Hindenburg the formation of the cabinet more and more came under the power of the Reich President and that of the Reichstag decreased. The end of this development was 30 January 1933. The Reichstag was no longer asked to do any work. Purely formally, under article 53, the president appoints the new government. Article 54 was no longer considered a serious threat. The parliamentary system is dead and we have the first demoting of the Reichstag. The second had already started in the meantime, as I have shown. The Reichstag had already resigned more and more as a legislative body; it is only the culmination of the development, what we see in the law of 24 March 1933 [Enabling Act] and the aftermath, the new reconstruction law [Neuaufbaugesetz] of 30 September 1934; the division of powers is dead. The Reichstag in its original and foremost function has been dethroned. What was its purpose now? In July 1933, political parties were definitely prohibited. A genuine parliament was no longer possible. The first Reichstag elected after this July law, in November 1933, was the Reichstag of one faction only elected by voters of one party only. It has been said that it was purely an assembly of acclamation. The great dualism in the Reich ended thereby and on the grave of the Reichstag there are three crosses. The small dualism between Reich President and Reich Chancellor ended with the death of Hindenburg and is expressed in the law of 1 August 1934, concerning the head of State [Staatsoberhaupt-Gesetz]. The greatest and most serious dualism between Reich and Laender in effect was eliminated before that. Usually one says in the German constitutional science that only the reorganization law of 30 January 1934 had turned the Laender into Reich provinces but that is certainly not correct. Looking at the facts themselves, that step was already taken by the Reich governor law [Reichsstatthaltergesetz] of 7 April 1933. When one summarizes all that and looks at those results together, the final phase is this—the entire power of the State in the German Reich is combined in the hand of that one man who quite arbitrarily can use that power to decide individual cases or to set new norms. It depends only on him, from the practical point of view of power, as to how long he refrained from interfering in the field of judiciary. * * *
Q. Professor, that was the question about the development up to the point when this one man, Hitler, held everything in his hand. I would say the result of historical development. We are interested in explaining to the Tribunal, if I may say so, the dogmatical position of the Hitler decree as a legislator. Therefore, my question concerning your statements up to now concerned the development of constitutional law up to that historical point. But now, the Hitler decree and the act of lawmaking became actually one and the same. What was the effect of that on the legislative, on the executive, and on all forms of the state life after that time?
A. Perhaps I may begin with the procedure of the Hitler decrees, that is to say, with the exterior manifestations. I have shown that in German constitutional law we had the difference between statute, in the formal sense, and ordinance. The one was the act of the legislature—the other of the executive. On account of the enabling act and as a consequence of the first acts of the Hitler government, the procedure of legislation became a dual one. We still had more or less—for Sundays only, so to speak—the procedure of legislation through the Reichstag. The normal course of legislation was the statutes enacted by the Reich government, which should not have been called that way. We also had, from the imperial days, and we kept it up during the days of the president, the decree by the head of state, especially distinguished in the way of ordinance, for instance the organization act and we had the ordinance by the government. Hitler, by and by—but it happened rather quickly—emancipated himself from those regulations of the laws which were previously valid and concerning the various forms of norms, he used them arbitrarily. As to whether a statute passed by the Reichstag, as I described it, was brought in by suggestion of the National Socialist Party with Hitler as the first mover of the motion, was passed by way of acclamation, without debate; or whether the law was decided on by the government—that happened very quickly by way of circulation—or whether Hitler called it “Decree by the Fuehrer and Reich Chancellor”—later called “Fuehrer Decree” or ordinance, such as the famous ordinance on the Enforcement of the Four-Year Plan—for the legal value that did not matter at all. In all cases Hitler alone decided, whether he would take advice or not, whether there was a cosignature or not, for genuine cosignature in the constitutional meaning, of course, could not exist any more. There have been many arguments as to what the cosignatures which weren’t always affixed meant. People have tried very hard to find a meaning, but the only thing that is really certain is that these cosignatures did no longer have the meaning or significance of the proper countersignature. There was nobody toward whom one could have assumed any responsibility by countersigning. Therefore, all fixing of norm, signed by Hitler’s name alone or together with other names, is merely an act of will of that man—whether it calls itself a law or something else.