The Reichstag Fire Decree

On 28 February 1933, little more than twelve hours after the Reichstag fire, Reich President Paul von Hindenburg signed the “Decree of the Reich President for the Protection of People and State” (Verordnung des Reichspräsidenten zum Schutz von Volk und Staat), usually known in Germany as the Reichstag Fire Decree (Reichstagsbrandverordnung). It was countersigned by Chancellor Adolf Hitler, the interior minister Wilhelm Frick and the justice minister Franz Gürtner. A short text of just six sections, it suspended “until further notice” the most important civil rights enshrined in the Weimar constitution: personal liberty, freedom of speech, of the press, of assembly and of association, the privacy of letters and telephone calls, and the inviolability of the home and of property. The stated justification was “defence against Communist acts of violence endangering the state”, but its provisions were not confined to Communists. The decree was never revoked. Until 1945 it was the legal basis for arrests without trial, for the concentration camps and for the work of the Gestapo. The German lawyer Ernst Fraenkel, who fled the Third Reich before the war, called it in 1941 the “constitutional charter of the Third Reich”.

Article 48

Article 48 of the Weimar constitution of 1919 gave the Reich President emergency powers. When public security and order were seriously disturbed or threatened, he could issue decrees with the force of law, use the army and temporarily suspend certain fundamental rights. The Reichstag could revoke such decrees, and the details were to be laid down in a separate law, which was never passed. In the republic’s early years President Friedrich Ebert used these powers to defend the state against putsches and uprisings, and in the crisis of 1923 he handed executive power to the army for several months.

From 1930 Article 48 became the normal way of governing. Chancellor Heinrich Brüning, and after him Franz von Papen and Kurt von Schleicher, had no majority in the Reichstag and relied on presidential decrees, while parliament, dissolved whenever it objected, lost its significance. After the 1930 election Hindenburg issued more decrees than the Reichstag passed laws. When Hitler became chancellor on 30 January 1933, the instrument was ready. As early as 4 February Hindenburg signed a decree “for the protection of the German people”, which allowed meetings and newspapers to be banned if the authorities judged them a threat to order. It was modelled on a draft prepared as early as 1932 by the Papen government. The decree of 28 February, however, went much further than anything issued before.

The decree

As the Reichstag chamber burned on the night of 27–28 February, Hitler and Hermann Göring at once declared it the signal for a Communist uprising. The Prussian police, headed by Göring, arrested hundreds of Communists that very night, although they had no legal basis for doing so. In the morning officials of the Prussian interior ministry prepared a draft decree, which the cabinet discussed at an emergency meeting. According to the minutes, Hitler said that the reckoning with the Communists could not be made dependent on legal considerations. Frick added a provision allowing the Reich government to take over power in the federal states. None of the conservative ministers, including the vice-chancellor Franz von Papen, protested. Hindenburg signed the decree that same day, and it came into force immediately.

The first section was the most important. It suspended Articles 114, 115, 117, 118, 123, 124 and 153 of the constitution and permitted restrictions on personal liberty, freedom of expression and of the press, the right of assembly and association, the monitoring of post and telephones, searches, confiscations and restrictions on property “even beyond the limits otherwise prescribed by law”. This meant that the police could detain anyone without a court warrant, without giving a reason and without time limit, and the detainee had no means of appeal. The second section allowed the Reich government to assume the powers of a state’s authorities if that state failed to maintain order. The fourth and fifth sections increased penalties: high treason, arson, causing explosions, poisoning or damaging railway lines now carried the death penalty instead of life imprisonment, and armed resistance and hostage-taking in political struggle carried death or penal servitude. That same day Hindenburg signed a second decree, “against treason against the German people and treasonous machinations”, aimed at the press and the opposition.

Protective custody

The decree gave the Nazis the tool they needed most: “protective custody” (Schutzhaft). Formally it was meant to protect the state from dangerous individuals; in practice it was imprisonment without sentence, for an indefinite period, decided by the police. In the first days of March Göring instructed the Prussian police to apply it not only to Communists but also to those who worked with or supported them, which in practice covered every opponent. Since the stormtroopers of the SA and the SS were already members of the auxiliary police, the power of arrest went to men who had been fighting Communists and Social Democrats in the streets for years and could now take their revenge.

In Berlin alone some 1,500 people were arrested during the first night and day; in Prussia as a whole, historians estimate about ten thousand within two weeks. Those detained included Communist deputies, activists, journalists and writers, and on 3 March the police caught the KPD chairman Ernst Thälmann. The prisons quickly overflowed. The SA locked people up in the cellars of its premises, in old factories and in barracks, where they were beaten and tortured, and some were murdered. These were the first, “wild” concentration camps. According to estimates by German historians, about 45,000 people had been placed in protective custody by the end of April 1933. Most were released after a few weeks or months, intimidated and sworn to silence, but the aim had been achieved: the organised left had ceased to exist.

The elections and the takeover of the states

The decree set the conditions for the republic’s last multi-party election, on 5 March 1933. The KPD was not banned, because Hitler wanted it to draw votes away from the Social Democrats, but its leaders were in prison or in hiding, and its press and rallies were prohibited. The Social Democrats campaigned under terror. Even so, the NSDAP won only 43.9 per cent of the vote and had a majority in the Reichstag only together with its allies in the German National People’s Party. The Communists won 81 seats, but their deputies never took them up.

Using the second section, Frick took over power within a few days of the election in the federal states not governed by the Nazis. The scenario was similar everywhere: the SA staged demonstrations and occupied government buildings, and the Reich interior minister, citing a threat to order, appointed a Reich commissioner, usually a local Nazi, who took control of the police. Between 5 and 11 March this happened in Hamburg, Bremen, Lübeck, Hesse, Baden, Württemberg, Saxony, Schaumburg-Lippe and Bavaria, where power was seized by General Franz von Epp and Heinrich Himmler became head of the political police. Federalism, which was supposed to protect Germany from dictatorship, ceased to exist within a week.

The foundation of the terror state

The decree was conceived as an emergency measure, but it never lapsed. Together with the Enabling Act passed a few weeks later, it became the legal foundation of the dictatorship. The political police invoked the decree of 28 February when it sent Communists, Social Democrats, clergy, Jehovah’s Witnesses, people deemed “asocial” and anyone else it regarded as an enemy to the camps. Over time the courts accepted that, since fundamental rights were suspended, they could not review police decisions. The protective custody order of 1938, which gave the Gestapo the exclusive right to send people to the camps, was based on it, and during the war protective custody was used on a mass scale against the inhabitants of occupied Europe. The decree lost its force only with the collapse of the Third Reich, and its last penal provisions were formally repealed by the Allied Control Council in 1947.

Significance

The decree of 28 February 1933 was the moment at which the Weimar Republic ceased to be a state governed by the rule of law. There was no coup and no suspension of the constitution. Everything was done on the basis of a provision that the founders of the republic had written into it to defend it, with the signature of a president who had sworn to protect it, and amid the silence of conservatives who believed they were controlling Hitler. It was precisely this appearance of legality that led officials, police officers and judges to carry out the new regulations without objection.

Without the decree there would have been no concentration camps in the form they took, and no Gestapo acting with impunity. A state in which, from 1933, anyone could be imprisoned without trial could then prepare for war and persecute the Jews unhindered. The institutions and habits born in February and March 1933 – detention without sentence, the camp as a place beyond the law, and police above the courts – were carried by Germany in 1939 into occupied Poland and across Europe.