Enabling Act of 1933

• 1. Introduction

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  The Enabling Act of 1933 carried an official title that translated, roughly, as the Law to Remedy the Distress of the People and the Reich. That name was almost everything the act was not. Far from remedying distress, the Gesetz zur Behebung der Not von Volk und Reich stripped the German parliament of its legislative power, handed it to a cabinet led by Adolf Hitler, and dissolved nearly every constitutional check that had kept a single man from ruling Germany alone. What followed was not remedy. It was the legal architecture of a totalitarian state. How did a democracy vote itself out of existence in a single afternoon? And who, if anyone, stood up to say no?

• 2. Fire and Fear

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  On the 27th of February 1933, the Reichstag building caught fire. Hitler, who had been chancellor for less than a month, immediately accused the Communist Party of starting the blaze as the opening move of a plot to overthrow the government. Within days he had persuaded President Paul von Hindenburg to sign the Reichstag Fire Decree, abolishing most civil liberties in Germany: the right to speak, to assemble, to protest, and the right to due process were all suspended. A state of emergency was declared, and a violent crackdown on the Nazis' political enemies began, targeting the Communist Party above all. Yet Hitler almost immediately declared the decree insufficient. He wanted something broader, something permanent. He submitted to the Reichstag a proposal for an enabling law that would give his cabinet essentially unlimited power to make law without parliamentary approval. The fire had provided the pretext. Now he needed the votes.

• 3. Buying the Majority

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  The Enabling Act, as a constitutional amendment, required the support of two-thirds of Reichstag members present, with at least two-thirds of the full membership in the chamber. The Nazi Party held 288 seats, not enough on its own. The Communists and Social Democrats were expected to vote against, and the government had already arrested Communist and some Social Democrat deputies under the Fire Decree to thin their ranks. The conservative parties representing business interests, landowners, and the middle class were expected to vote in favour. That still left the Catholic Centre Party as the swing bloc. Hitler negotiated directly with the Centre Party's chairman, Ludwig Kaas, a Catholic priest, and finalized a deal on the 22nd of March. Kaas agreed to deliver his party's votes in exchange for assurances that Catholic civil liberties, Catholic schools, and party-affiliated civil servants would be protected. Some historians, including Klaus Scholder, have argued that Hitler also privately promised to negotiate a formal concordat between Germany and the Holy See. Kaas was a close associate of Cardinal Pacelli, the Vatican Secretary of State who later became Pope Pius XII, and Pacelli had long sought such a treaty. The day after the vote, Kaas travelled to Rome, explaining he intended to investigate the possibilities for an agreement between church and state. The written guarantees Hitler had promised Kaas, however, were never actually delivered.

• 4. The Kroll Opera House

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  Late on the 23rd of March, the Reichstag convened not in its fire-damaged home but at the Kroll Opera House, where it had relocated temporarily. SA men were stationed inside and outside the chamber. Hermann Göring, as Reichstag president, had already changed the body's rules of procedure to ease the bill's passage. Under the Weimar Constitution, a quorum of two-thirds of the full 647-member Reichstag was required to bring a constitutional amendment to a vote. That meant 432 deputies had to be present. Göring reduced this figure to 378 by simply not counting the 81 absent KPD deputies, treating them as though they did not exist. The British historian Richard J. Evans, writing in his 2003 book The Coming of the Third Reich, argued this was an illegal act. Göring was not required to count the Communists as voting, Evans maintained, but he was required to count them for purposes of the quorum. Only one party leader rose to speak against the bill. Otto Wels, leader of the Social Democrats, defended his party's record in rebuilding Germany after the First World War and rejected the Nazis' claim that special powers were necessary. Surrounded by SA men who had spent the day intimidating deputies, Wels declared: "No Enabling Act gives you the power to destroy ideas that are eternal and indestructible." Hitler's own speech ended with a thinly veiled demand that parliament vote itself into irrelevance: he told the chamber it would be inconsistent with the aim of the national uprising to ask the Reichstag for approval of government measures case by case. The Centre Party's Kaas spoke to voice support amid, in his own phrase, "concerns put aside".

• 5. The Vote and Its Tally

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  When voting proceeded, SA men remained present throughout, and SPD deputies faced active intimidation. The final count was 444 in favour and 94 opposed, with 109 absent. Every party except the Social Democrats voted yes. All 94 votes against came from SPD deputies; 26 SPD members were arrested or in hiding and could not vote. The Reichstag had adopted the bill with the support of 83% of deputies present. Evans calculated that even if every SPD member had been in the chamber and voted against, the act would still have passed with 78.7% support. That same evening, the Reichsrat, the upper chamber representing Germany's state governments, gave its unanimous assent without prior debate. President Hindenburg signed the Enabling Act into law before the night was out. The law was set to expire after four years unless the Reichstag chose to extend it.

• 6. A Law That Consumed Itself

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  The Enabling Act was renewed twice, first in 1937 and again in 1939. By that point, renewal was a formality: all other political parties had been banned since the 14th of July 1933, when the Law Against the Formation of Parties made the NSDAP the only legally permitted party in Germany. Hitler had promised exactly this outcome in earlier speeches, declaring he had set himself one aim, which was to sweep thirty parties out of Germany. The act's own provisions were soon violated by the government it empowered. On the 30th of January 1934, a law dissolved Germany's state parliaments and subordinated the state governments to the Reich, effectively gutting the Reichsrat, whose continued existence Article 2 of the Enabling Act had explicitly guaranteed. Two weeks later, on the 14th of February, the Reichsrat itself was abolished by cabinet decree, contrary to Article 63 of the Weimar Constitution. In August 1934, President Hindenburg died of lung cancer. Hitler seized the president's powers the following day, confirmed by referendum, even though Article 2 of the act stated the president's powers were to remain undisturbed. A 1932 constitutional amendment had made the president of the High Court of Justice, not the chancellor, first in the line of succession to the presidency; this was never observed. None of these apparent violations was challenged in court. The cabinet that the act had empowered gradually stopped meeting in any meaningful sense. After 1934, full cabinet sessions became increasingly rare. After 1938, the full cabinet did not meet at all. On the 25th of January 1943, Hitler extended the term of Reichstag members until the 30th of January 1947 by enacting a separate law, effectively stretching the act's provisions through the end of the war.

• 7. Aftermath and Legacy

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  The Enabling Act was formally repealed by the Allied Control Council in Control Council Law No. 1, following Germany's surrender at the end of World War II. The consequences it had set in motion were staggering. Hitler used the powers it granted to begin German rearmament and pursue an aggressive foreign policy that led to World War II and the death of one-tenth of Germany's own population. By mid-March 1933, the government had already begun sending communists, trade union leaders, and political dissidents to Dachau, the first Nazi concentration camp. Germany's Basic Law of 1949 was written to make a recurrence structurally impossible. It stipulates that only bodies constitutionally endowed with legislative power may enact laws. It also establishes that political parties can be declared enemies of the constitution only by the Federal Constitutional Court, the Bundesverfassungsgericht, not by a parliamentary majority. This clause makes explicit that even a popular majority cannot be permitted to install a totalitarian regime as was achieved through the Enabling Act of 1933. The signatories of the act each met a distinct fate: Hindenburg died of lung cancer sixteen months after signing it; Hitler committed suicide in 1945 to avoid Allied capture; Reich Interior Minister Frick was executed after his Nuremberg conviction; Foreign Minister von Neurath received a fifteen-year Nuremberg sentence; Finance Minister Schwerin von Krosigk received a ten-year sentence.