JUSTICE - No. 66

58 No. 66 JUSTICE use of Article 48, the so-called “Dictatorship Article,” was in this specific case in line with the Weimar Constitution was not addressed by the court. One reason was that the Leipzig Court was not a constitutional court with full judicial review competencies. The other reason was that prominent legal theorists, foremost Carl Schmitt, argued that the Reich president himself was the “guardian of the constitution”and, therefore, could not be subject to judicial review. This was a major defect in the Weimar Constitution. There was no legal body that could assess whether state institutions, including the Reich president, were acting in conformity with the Weimar Constitution. By the time Hitler assumed office, the National Socialists knew perfectly well what a powerful tool the emergency decrees provided for replacing parliamentary democracy with authoritarian rule. And they were determined to use Article 48 to build a state that concentrated all power in the“Führer’s”hands. The first decisive legal measure was the so-called Reichstag Fire Decree from February 28, 1933. It suspended basic civil liberties such as freedom of expression and the right to assembly. The second legal measure paving the way for dictatorship was the so- called Enabling Act of March 24, 1933. It authorized the government to enact laws and amend the constitution without parliamentary oversight. The Enabling Act served as a basis for several so-called coordination measures for establishing a centrally governed state. The National Socialists used constitutional norms as the means for exerting the kind of power that was defined as illegal by those very same constitutional standards. Political manipulation and propaganda did the rest. The process by which the National Socialist takeover unfolded necessitated a dual justification. Politically, it was important to depict the transition from the Weimar Republic to the Third Reich as a radical, revolutionary break. From a normative perspective, however, it was crucial to defend the legality of the process. In his 1939 study on the constitutional foundations of the Third Reich, Ernst Rudolf Huber, a student of Carl Schmitt, wrote that with Hitler’s nomination to Reich chancellor, “the Weimar Constitution was dead.” For Huber, the National Socialist state rested on new constitutional foundations, foremost the Enabling Act and the Law for the Recon st ruction of the Reich of January 30, 1934, which eliminated the authority of the federal states. The problem with this definition of the National Socialist constitution, however, was that both the Enabling Act and the Law for the Reconstruction of the Reich only became law through the application of Article 76 of the Weimar Constitution. Huber was thus obliged to accept that both measures derived from the very constitution he himself had declared dead by the time those laws came into force. How did Huber cope with this obvious inconsistency? For Huber, the decisive factor for the normative validity of legal principles was not their formal legality, but their legitimacy, by which he meant their congruence with the principles of the National Socialist political movement and worldview. The National Socialist legal theorists insisted on the legality of the Nazis’ power grab by pointing to it as simply continuing a process of government by emergency decrees, as was done during the Weimar Republic. According to this argument, Hitler’s measures were no different from how late Weimar era governments relied on Hindenburg’s invocation of Article 48. What the Nazi legal theorists chose to ignore were the opposite ends to which appeals to Article 48 in the Weimar era and the Nazi era strived, one saving a democratic system versus the other completely destroying it. n Herlinde Pauer-Studer, Professor of Practical Philosophy, Department of Philosophy, University of Vienna. She is the author of “Ju st ifying Inju st ice. Legal Theory in Nazi Germany” (Cambridge University Press, 2020).