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The Reichstag Fire Decree

by Soren Swigart

The night of February 27, 1933 loomed dark and gray over the city of Berlin. The Reichstag, seat of parliamentary government in Germany, had been in recess since December of the preceding year. New elections were scheduled for March 5th. The great building was quiet and except for a watchman, empty. At 9:05 that evening, a student passing by saw a man carrying a burning torch through the windows of the first floor but did not report it. Ten minutes later smoke was observed coming from the building and the first fire alarm was received by the Berlin Fire station. In less than ten minutes the firemen were on the scene but already flames were breaking out all over the building. At 9:30 there was a tremendous explosion and the great central chamber was totally enveloped in flames. The fire quickly raced out of control despite the efforts of the fire fighters and soon only the walls of the gutted building were still standing. Within minutes police arrested a half naked and seemingly dazed Dutchman, Marinus van der Lubbe, who was discovered at the scene.

It wasn't long before Chancellor Hitler and Prussian Minister Göring arrived amid a flurry of reporters and photographers. Although he had just stepped out of his car, Göring at once accused the communists of setting the fire. The debate over who set the fire continues and may never be solved to everyone's satisfaction. Despite attempts to support the case against van der Lubbe, who was tried and executed for the crime, a great deal of evidence collected and analyzed by Walther Hofer of Bern points in the direction of a SA/SS Sondergruppe headed by Reinhard Heydrich and an official of the Prussian Ministry of the Interior, Kurt Dalüge. Less important than the cause of the fire however was the result. Before the sun rose on the morning of the 28th, over 4,000 communists and a miscellany of intellectuals and professional men who had incurred the wrath of the Nazi Party were arrested. A shaken President Hindenburg, 86 years old, was easily convinced that the nation was on the verge of a communist revolution, was induced by Hitler to sign an emergency decree suspending the basic rights of the citizens for the duration of the emergency. This decree also authorized the Reich government to assume full powers in any federal state whose government proved unable to restore public order, ordered death or imprisonment for a number of crimes including some newly invented - such as resistance to the decree itself. The decree did not include any provision guaranteeing an arrested person a quick hearing, access to legal counsel, or redress for false arrest. Those arrested often found their detention extended indefinitely without legal proceedings of any kind.

On March 2, Hitler was asked by a corespondent of the Daily Express whether the suspension of liberties was permanent. He answered in the negative saying that full rights would be restored as soon as the Communist danger was over. The reality was that the decree of February 28th established what would become the normal order of things under National Socialism - arrest on suspicion, imprisonment without trial, the horrors of the concentration camps. This condition would persist until the end of the Third Reich.

Immediately after its promulgation the decree was turned against the real and fancied enemies of the Nazi Party. In the last weeks of the election campaign the Marxist press was silenced. The Social Democrats found it impossible to campaign effectively and even respected Center party politicians like former Reich Chancellor Heinrich Bruning had their meetings broken up by brownshirted SA thugs. Despite this the Nazi Party fell far short of the two thirds majority needed to change the constitution. Hitler now showed his contempt for the rule of law by turning the decree of February 28th against those states where significant opposition still existed. Using the argument that local authorities were unable to maintain order, which most were actaully disrupted by drunken brownshirts and SS members, the government replaced the legally constituted governments of Wurttemburg, Baden, Bremen, Hamburg, Lubeck, Saxony, Hessen and Bavaria. Soon, with the support of the Center, Catholic and Bavarian Peoples Parties, the Nazis gained the passage of the Enabling Act, and Adolf Hitler on the afternoon of March 23rd, became the supreme dictator of Germany, free from any restraint from his cabinet or the aged President Hindenburg and free to mold Germany into the nightmare state of his darkest dreams.


The Reichstag Fire Decree

by Jonathan Rick

On January 30, 1933, Adolf Hitler became chancellor of Germany. He assumed that office constitutionally but not as a result of the democratically expressed choice of the German people. In fact, in the last national election before Hitler’s appointment, held in November 1932, the N.S.D.A.P.’s vote dropped by two million, a loss that reduced its seats in the Reichstag from 230 to 196. Two out of every three voters had cast their ballots for other parties in this last fully free election before the imposition of the Nazi dictatorship. Nor did Hitler’s appointment flow from normal parliamentary coalition politics. Instead, a backroom intrigue jobbed him into office, as a cabal of conspirators overcame the doubts of aged President Hinderburg. And yet, even the chancellorship did not satisfy this megalomaniacal dreamer - he was not yet dictator - and so in February 1933 the Nazis resolved that if the electorate would not come to them, they would go after it, Machiavellian style.

By a godsend, in late February 1933 there was in Berlin a feebleminded Dutch communist, whose passion for arson coincided with a Nazi conspiracy to burn the Reichstag building, Germany’s symbol, if not actual center, of democracy. Accordingly, Marinus van der Lubbe spent February 27 lurking around the Reichstag, before breaking in at night and, using his shirt as a torch, lighting small fires. Simultaneously, though unknown to van der Lubbe, Karl Ernest was leading a small detachment of S.A. troopers through an underground, central heating passage connecting the Reichstag President’s Palace to a cellar in the Reichstag. Two and a half minutes after van der Lubbe entered, the great hall was fiercely burning, the efforts not of a half-wit with only his shirt as tinder, but of considerable and scattered gasoline and self-igniting chemicals.

The "deep red glow"[1] caught the eyes of President Hindenburg and Vice Chancellor Papen, who were dining at an exclusive club around the corner from the Reichstag. Hitler was with the Nazis’ propaganda minister, Joseph Goebbels, dining en famille at the latter’s home, also in Berlin. All four rushed to the scene, where they met a hysterical Goering. "[T]his is a Communist crime against the new government," Goering screamed. "We must not wait a minute. We will show no mercy. Every Communist official must be shot, where he is found. Every Communist deputy must this very night be strung up."[2] Likewise, in his characteristic monomania, Hitler added that the government would "crush" the Social Democrats and the Reichsbanner with an "iron fist."

Having then so assigned guilt - and after the Führer came to a decision, afterthoughts were tantamount to treason - Hitler met with Nazi leaders, and then with Goebbels repaired to the editorial offices of their party paper, the Völkischer Beobachter. Invoking as evidence propaganda pamphlets Goering’s police had seized days earlier from the Karl Liebknecht Haus, the Communist headquarters in Berlin, the Nazis wasted no time and announced that the Bolshevik terroristic revolution was imminent. Consequently, at a cabinet meeting the next morning, Hitler "explained that a merciless struggle against the K.P.D. was now urgent. The psychologically correct moment for the struggle had now come."[3]

The term "psychologically correct" is apt. First, it meant exploiting memories of Communist uprisings during the Weimar republic, so to "throw millions of the middle class and the peasantry into a frenzy of fear that unless they voted for National Socialism at the elections a week hence, the Bolsheviks might take over."[4] Second, the term meant prevailing, that evening, upon the half-senile Hinderburg to sign a decree "for the Protection of the People and the State." As with his previous appeals to the President, Hitler pitched his decree as a lesser evil than a military state of emergency.

Of course, the ensuing civil state of emergency was severely militant, as the Nazis almost immediately initiated a wave of terror that cowed thousands of their political rivals. Moreover, as a self-described "defensive measure against Communist acts of violence, endangering the state," this so-called Reichstag Fire Decree suspended, effectively ending the seven sections of the Constitution that guaranteed individual and civil rights. In place of free speech and the rights of assembly and association, the decree authorized "violations of the privacy of postal, telegraphic and telephonic communications and warrants for house searches, [and] orders for confiscations." The decree also imposed capital punishment for armed and "serious disturbances of the peace," and empowered the Reich government to commandeer the federal governments when "necessary."

Consequently, the Nazis began to coordinate their party and the state. Signally reversing their own adherence to the Constitution and Germany’s venerable tradition of federalism, the decree effectively centralized the Reich government and put all its resources, most notably of Prussia, at the Nazis’ disposal. This Gleicschaltung thus capacitated S.A. violence, so that Goering could legally replace senior policemen with his own thugs. This gave Germans their first taste of Nazis using the Constitution for in-your-face coercion, so that S.A. troops could place Communist officials, Social Democrat and liberal leaders - even members of the Reichstag, who were legally immune from arrest - into "protective custody," that is, into S.A. barracks. Combined with the Nazis’ corresponding, unprecedented propaganda campaign, the result, as William Shirer describes it, was that the German "street, bedecked with swastika flags, echoed to the tramp of the storm troopers."[5]

Lost in the sound and fury was the courageous opposition of former Chancellor Brüning, who proclaimed that his Catholic Center Party would resist any overthrow of the Constitution and demanded an investigation of the suspicious Reichstag fire. The German electorate similarly remained skeptical, and in the promised election on March 5, they refused the Nazis a parliamentary majority, albeit by only six percent. Nonetheless, by voting eight percent for the Nationalists, the Germans gave the Nazis coalition control.

Thus flush with victory, Hitler now sought real dictatorial power, which meant dissolving parliament by transferring power from it to the Reich cabinet. For such change, originally to hold for four years, the Nazis needed to amend the Constitution, for which they needed the vote of two-thirds of the Reichstag. Again, their electoral strategy relied heavily on terror, this time supplemented by blackmail, lies about future concessions, and by simply excluding their opponents from parliament. In this way, Hitler secured crucial votes from the Catholic Center Party. Moreover, when the Enabling Act, otherwise known as the Law for the Removal of the Distress of People and Reich, came up for vote on March 23, Nazi storm troopers encircled the Reichstag, so that in order to enter the building, legislators had to pass through a ring of these raucous thugs, whose chants rang in their ears as they voted. The vote was a fait accompli: 441 for, and ninety-four (all Social Democrats) against. The Nazis were now a legal dictatorship, and Hitler Germany’s legal dictator.

Occurring a few days before Germany’s national elections of 1933, the Reichstag fire decree gave rise to rumors and trepidation. The public and even some of the conservatives distrusted the Nazis’ account. The foreign press blamed Goering, which seems most likely. It is difficult to ascertain whether Hitler was involved. On one hand it is unlikely that any Nazi - especially the intensely loyal Goering - acted without the Führer’s consent. Conversely, Hitler’s ever-alert radar in prejudging popular sentiment might have led him to cancel Goering’s cynically brilliant plot.

Whosever calculations they were, they were intensely political. After all, the fire department had restored calm the night of the fire, and the Nazis, using existing decrees, had already preempted a large-scale, planned revolt by proscribing K.P.D. newspapers, meetings and demonstrations. The calculations were also intensely effective. After all, no one died in the fire, the alleged arsonist was tried, convicted and decapitated, and given that the Nazis’ rise owed in large part to the middle-class fear of Communism, the smoke screen allowed them to expertly shape that fear into a campaign slogan. In sum, though some argue that the Reichstag Fire Decree constituted a quantitative, not a qualitative change, most agree that, by means similar to those of a coup d’etat, it represented the "Constitution of the Third Reich," as Helmut Krausnick put it, and proved, as Karl Dietrich Bracher has shown, to be "fundamental to the stabilization" of the Nazi dictatorship.[6]

[1] "The Rise of Hitler: February 27, 1933: The Reichstag Burns," History Place.
[2] As quoted in William L. Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany (Simon and Schuster), p. 192.
[3] As quoted in Hans Mommsen, "The Political Effects of the Reichstag Fire," in Henry A. Turner Jr. (ed.), Nazism and the Third Reich (New York: Franklin Watts, 1972), p. 127.
[4] William L. Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany (Simon and Schuster), p. 194.
[5] William L. Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany (Simon and Schuster), p. 194.
[6] As quoted in Hans Mommsen, "The Political Effects of the Reichstag Fire," in Henry A. Turner Jr. (ed.), Nazism and the Third Reich (New York: Franklin Watts, 1972), p. 128


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