JUSTICE - No. 66

57 Spring 2021 he National Socialist seizure of power in 1933 was a radical departure from the preceding political order, setting an end to Germany’s first democracy. However, the Nazis could rely upon authoritarian practices of governance that characterized the final period of the Weimar Republic. The fall of the Weimar Republic was also due to certain shortcomings in the Weimar Constitution, for example governance by presidential emergency decrees and the absence of a constitutional court with clear competencies for judicial review. From the beginning, the Weimar Constitution was not received with broad approval, let alone enthusiasm. It was a document marked by political compromise and never became normative policy with a view to govern and guide political life in Germany between 1919 and 1932. Why did the spirit of the Weimar Constitution not come to life? Critical observers cite the lack of positive engagement on behalf of the political parties and Reichstag representatives, and that included the opposition. According to critics, they simply had no awareness of their responsibility to enable a positive and constructive political culture. But there was also an article in the constitution itself that played a key role in Weimar’s demise. Article 48, the so-called “Dictatorship Article,” allowed the Reich president to intervene in the political process via emergency decree. Section 1 of this article specified that the president may, if necessary, deploy the army to force a state ( Land ) to fulfill its constitutionally or legally imposed duties towards the Reich. Article 48, section 2 defined the measures the Reich president might take to restore public order and security should these be disturbed or endangered. In addition to the right to call upon the assistance of the armed forces, the president could abrogate articles of the constitution that guaranteed the protection of basic civil rights and liberties. As long as Friedrich Ebert was president, this accumulation of presidential power did not seriously threaten democracy. Paul von Hindenburg, who became president after Ebert’s death in 1925, in the first years also strictly adhered to the terms of office. The situation changed after the stock market crash in October 1929. A period of political instability set in. For example, Chancellor Heinrich Brüning’s minority government relied more on President Hindenburg’s emergency decrees than on legislation by the Reichstag. Brüning resigned as chancellor on May 30, 1932 and was followed by Franz von Papen. The last months of the Weimar Republic began with an unprecedented attack on the elected Prussian state government. On July 20, 1932, Reich Chancellor Franz von Papen dismissed the elected Prussian government and placed Prussia under the authority of a federal commissioner. The legal basis for Papen’s spectacular step was an emergency decree signed by Reich President Hindenburg. The Prussian government responded to Papen’s measure by following the rule of law and brought the issue before the State Court in Leipzig which handled disputes between the Reich and the Länder (federal states). On October 25, 1932, the State Court ruled on the case, arguing that while the Prussian government had not violated its duties toward the Reich, it had failed to guarantee public security and order (i.e., no violation of Article 48.1; but a violation of Article 48.2). The court saw in this divided judgment the opportunity for a viable compromise between the parties to the dispute.Yet, this was illusory considering the political circumstances. The crucial question, namely whether Hindenburg’s A Tale of Di st orted Legality and Illegitimacy: The Transition from the Weimar Republic to the Third Reich* T Herlinde Pauer-Studer * Paper accompanying the Virtual Panel: “The Nazi Rise to Power and the Weimar Constitution,”January 28, 2021.