Scott Armato

September 21, 2009

The question of the legality of Hitler’s rise to power is one shrouded in shadows of

interpretation and points of view. While the machinations that brought the Nazi regime to power

were to the letter of the law, Hitler obliterated the spirit of the law and with it the Weimar Republic.

Built on democratic ideals and philosophies, the Weimar Republic was the successor state to

the dissolved German Empire following World War I. It was created as a federal parliamentary

democracy, granting suffrage to all adults over the age of 20. The parliament was bicameral, with an

Upper Chamber – the Reichsrat, appointed by the Länder – capable of vetoing the legislation of the

Lower Chamber, the Reichstag. However, this veto was able to be overturned with a vote of two-

thirds of the Reichstag. The seats in the Reichstag were allotted on the basis of proportional

representation, elected directly by the people. The Chancellor was responsible to the Reichstag, and is

analogous to the post of Prime Minister in other parliamentary democracies.

Balanced against this strong legislative was the President of the Republic. Elected for a

seven-year term, the President was the Head of State: the military was under his direct control, he

had the power to negotiate and implement treaties, and he had the power to dissolve the Reichstag.

Under Article 48 of the Constitution, the President could temporarily suspend constitutional

guarantees and intervene if he felt it was necessary to restore law and order.

As leader of the Nazi party, Hitler’s rise to prominence began in the 1920s. The Nazis made

their anti-governmental views known, and, in 1923, Hitler led a failed coup d’etat, resulting in his

imprisonment for three months. Upon his release, Hitler vowed to come to power, not by

revolution, but through legal means, affecting revolution from above. In the four years after the
attempted coup, Nazi representation in the Reichstag dropped from 32 seats in 1924 to 12 in 1928.

However, increased economic hardship and internal strife caused Germany’s vast middle class to

become more receptive to Nazism, and by 1932 the Nazi party was easily the largest in the Reichstag.

While the Nazis held a comfortable plurality, in order to form a majority government, they

were forced to ally with one or more of the other parties. The KPD – the Communist Party of

Germany – held the second-largest number of seats, and it seemed clear that the two would unite to

form a government. As the leader of the party with the greatest number of seats, Hitler fully

expected to be named Chancellor by President Hindenburg. Hindenburg was aware of the threat

Nazism bore, and refused to name Hitler as Chancellor. Hitler responded by creating a majority

coalition with the other parties in the Reichstag, effectively marginalizing the Communists and

ensuring that he would be named Chancellor, which finally came to pass on January 30, 1933.

The next month, the Reichstag was burnt to the ground. The fire was blamed on the

Communists, and, in response, President Hindenburg issued a decree on the basis of Article 48,

eliminating certain personal rights. This decree had the practical effect of denying the Communists

their seats in the Reichstag.

With the Communists gone, the Nazis were able to enact legislation to alter the constitution.

A change to the constitution required passage by two-thirds of the Reichstag, of the required two-

thirds present and voting. This mathematical anomaly allowed for the passage of the Enabling Act

of 1933, opposed only by the Social Democrats. This Act permitted both the government of the

Reich as well as the Reichstag to enact legislation, effectively creating Hitler as the new Dictator of

Germany.

While Hitler secured his revolution through objectively legal means, the process through

which it was achieved was in direct contempt for the law. Article 48 of the Weimar Constitution
 gave the President far-reaching and intimidating powers, but it was originally planned as a temporary

power to prevent mass activism, not as an excuse to unleash it upon an unsuspecting populace.

Article 48 was conceived as a safeguard for democracy, and, instead, it was used to destroy

democracy’s tenuous grasp on what was left of Germany.

The Enabling Act prohibited the government from enacting legislation that affected either

the Reichsrat or the Reichstag, but Hitler circumvented this by destroying the autonomous rights of the

Länder – and with them the Reichsrat – eventually eliminating that body entirely. The Act was used to

suppress the formation of new political parties, which made the Reichstag irrelevant. Without the

element of choice, the voting rights of those over 20 were completely useless.

Amending the constitution of a nation is primarily a means of improving the stability of a

republic. Hitler never had the intent of creating a more perfect union; he never had the plan to

refine the government of the Weimar Republic. Hitler’s objective from the outset was to destroy

the Weimar Republic by amending it into irrelevance.

The revolution was legal if and only if the complete destruction of a nation can be

considered legal. One loses the right to call one’s revolution “legal” when its only purpose is to

create a charismatic leader as the embodiment of the law. Terming this a legal revolution is simply a

quirk of semantics, one of the several immensely bizarre realities entrenched in any discussion of the

Nazi regime.

Sources

Lee, Stephen J. Hitler and Nazi Germany. New York, NY: Routledge, 1998.

Henig, Ruth. The Weimar Republic. New York, NY: Routledge, 1998.