State, Movement, People, Part 1
Posted By Carl Schmitt On In North American New Right5,666 words
[1]
Part 1 of 4
Translated with notes by Simona Draghici
Editor’s Note:
Carl Schmitt published State, Movement, People (Staat, Bewegung, Volk) near the end of 1933. Like many of his most important works, it is short and pithy (less than 25,000 words). State, Movement, People, unlike most of Schmitt’s writings, is directed to a broad literate audience, not specialists in political philosophy and legal theory. Schmitt’s goal is to explain and legitimize the new political order imposed by the National Socialist regime.–Greg Johnson
I. The Present Constitutional Situation
1. All public law of the present German state rests on its own ground. Some individual provisions of the Weimar Constitution are still in force, yet no more than the large mass of pre-revolutionary regulations, and so only to the extent they do not contradict the new juridical conditions. However, they do not serve as the groundwork and constitutional legitimation of the present state. Their continuous validity rests on an assumption in part explicit (as for instance, with regard to the conditional stipulations, to be talked of shortly, of the provisional constitution—the so-called law of empowerment[1] [2] of 24 March 1933), and partly implicit in the new public law. Either substantially, by its contents, or formally, by its legal constitutional force, the Weimar Constitution cannot be the foundation of a National Socialist state.
The Weimar Constitution is no longer in force. All the principles and regulations that were essential to that constitution both from the ideological and the organizational standpoints are set aside along with all their premises. Even before the so-called empowerment law of 24 March 1933, a decree issued by the Reich President on 22 March 1933 had solemnly abolished and removed their spirit and their foundation together with the black-red-gold flag of the Weimar system (Article 3 of the Weimar Constitution[2] [3]). Likewise, one could not wait for the empowerment of a system which by its own weakness and neutrality was in no way capable of recognizing even a mortal enemy of the German people, in order to abolish the Communist Party,[3] [4] the enemy of the state and of the people. Such a judicial measure as the law of the Reich of 14 July 1933 against the reconstitution of political parties (Reichgesetzblatt I, p. 479)[4] [5] and the law of 13 October 1933 to ensure legal peace (RGBl, I, p. 723)[5] [6] eradicate the Weimar Constitution both ideologically and as far as its organizational consequences are concerned. That constitution is no longer identical with itself when the whole ideal, liberal-democratic world has collapsed, when for instance, there are no longer any indiscriminate party formations, any political freedom of propaganda, of opinion, of conscience, of action, and even of ideological efforts hostile to the state, leading to suicidal neutrality, when there is no longer any equalization or rather the absence of discrimination between the enemy of the state and the friend of the state, between the comrade of the people and the alien. The new world of the National Socialist law cannot be understood in any other way, and even less, find justification or a basis in the concepts and the forms of the Weimar system. From the point of view of the National Socialist state, every attempt to justify or to refute the present legal situation on the basis of the Weimar Constitution is for that very reason a senseless game, or else, an expression of the political effort to realign the public law in force now and the auctoritas rei constitutae,[6] [7] which belongs to the present-day state, with the order of the ideas of the former law, and in that way, either to paralyze it or at least to treat it as relative.
Even from the point of view of the so-called formal authority of constitutional law, the provisions of the Weimar Constitution are wanting. The provisional constitution of 24 March 1933 (the so-called law of empowerment), as well as the law of 14 July on the plebiscite,[7] [8] surpasses the framework of every regulation conceivable in terms of the Weimar Constitution. The conditional stipulations of the provisional constitution of 24 March 1933 (rights of the Reich President, and in addition, of the Reichstag[8] [9] and the Reichsrat,[9] [10] as institutions) have not the edge over the law of 14 July 1933 on the plebiscite. With the help of this law, other laws may take effect that would go beyond the conditional stipulations of the provisional constitution of 24 March 1933.
Several jurists, who obviously cannot get used to the reality of the National Socialist state, have tried to present the new basic laws of this state as deviations from the Weimar Constitution, deviations which should be measured exclusively against the so-called “law of empowerment,” either in generous terms, as “admissible,” or critically, as “inadmissible.” This is a concession which internally is impossible, unsustainable. The text of the Weimar Constitution cannot be treated as continuously valid in the conditions of the new public and constitutional law of the National Socialist state. From that it might then be deduced that the National Socialist public law (like the 1924 law regarding the Dawes Plan![10] [11]) has only the value of a temporary, interim measure against the background of the earlier constitution, and that a simple bill passed by the Reichstag might again abolish the new constitutional legislation entirely, and return to the Weimar Constitution.[11] [12] How can one distinguish the “pure text” of a constitution from its contents and its formal validity, and how is it possible to say with juridical logic that a constitutional law, admittedly new in its contents, is valid, and that the contents of the Weimar Constitution is still in force? I mention this manner of looking at things only in order to give an example of the confusion which appears as soon as one gives up the clear and simple viewpoint that the law of the present-day National Socialist state does not rest on a basis that is essentially alien and hostile to it, but on a basis of its own.
But what then is the meaning of the Reich law of 24 March 1933 that changed the constitution, yet was passed with the required majority of two thirds of votes, in accordance with the dispositions of Article 76 of the Weimar Constitution?[12] [13] This so-called law of empowerment was passed by the Reichstag solely as the enactment of the will of the people, made manifest through the parliamentary elections of 5 March 1933. When looked at with the criteria of jurisprudence, the elections were in fact a popular referendum, a plebiscite[13] [14] by which the German people has acknowledged Adolf Hitler, the leader of the National Socialist Movement, as the political leader of the German people. The local elections of 12 March confirmed once more the same will of the people. The Reichstag and the Reichsrat would act from then on exclusively as the executive bodies of the people’s will. Nevertheless, the mental habits of the so-called positivist jurists give them grounds to find in this law the juridical foundation of today’s state. The phrase “law of empowerment” further reinforces the propensity for this error. Because of that, it is necessary to recognize that the expression “law of empowerment” is a juridically imprecise albeit erroneous description. It would be better to avoid the expression altogether, the more so as it does not appear either in the title of the law (Law for Removing the Distress of People and Reich) or in its text: it has only been attached to the law from the outside. As a matter of fact, this “empowerment law” is a provisional constitutional law of the new Germany.[14] [15]
The provisional constitution of 24 March 1933 has all the characteristic features of a transitional measure. If this is correct under the aspect of a law transforming the constitution in conformity with Article 76 of the Weimar Constitution, that does not mean that one may still nowadays consider the Weimar Constitution as the foundation of the present-day state structure, but only that the law represents a bridge from the old to the new state, from the old base to the new base. Practically, it is of great importance that this transition should take place legally. As it will be recalled further on, legality is one of the ways by which the Civil Service and the administrative machinery of the state function, and for that reason it was important both politically and juridically. Besides, it is not without merit that a system surrenders on its own, in conformity with its own legality, and affixes its seal on its own end. But that is only the abdication and the death statement of the old law, and not the substantial definition of the new. Neither the base, nor the boundary or any essential interpretative opinion, that might bind the present-day state, can be deduced from the old era which has resigned. For the law in force nowadays, the “empowerment” of 24 March 1933 is nothing but a kind of republican analogy to the explicit release from the oath of loyalty uttered by a monarch when renouncing the throne or abdicating. On this point, that legalization is in its juridical and political meaning what the legalistic mentality of a legislative liberal-democratic state is for the principle of loyalty in a state of monarchical servants.[15] [16]
The German revolution was legal, that is to say, formally correct in keeping with the former constitution. That happened thanks to discipline and the German sense of order. In rest, its legality is meaningful only in terms of the legality of the former Weimar Constitution, that is of a system that has been superseded. It would be juridically false and politically an act of sabotage to derive from that kind of legality a continuous validity of superseded juridical ideas, institutions or norms, and together with it, a permanent submission to the letter and the spirit of the Weimar Constitution. The sound law of the German revolution does not rest on the fact that, through their consent, several dozens of deputies were willing by their fifteen percent to make up the difference which exists between the simple and the two-thirds majority. The law of the present-day German state does not hang on the conditions, limitations, or just the mental reservations under which that group has given its consent. It would be absurd, both politically and morally, as well as juridically, that empowerment be here granted by powerlessness, and in that way, seize power again for a system that has become impotent. What is alive cannot be legitimated by means of what is dead, and force has no need to legitimize itself by means of powerlessness.
At the 1933 Party Congress in Nuremberg, Rudolf Hess, our Leader’s deputy, has said that the Party Congress [Parteitag] is a “parliament” [Reichstag] of the Third Reich, and that hits the nail on its head. But the notion of “parliament” is not meant in the sense given to that institution by the Weimar Constitution. And when the Leader’s deputy utters the following sentence: “All the power comes from the people,” this is essentially different from what was meant by the liberal-democratic Weimar Constitution when it used the same words in its Article 1.[16] [17] All our public law, including all the provisions taken over from the Weimar Constitution and subsequently valid, rests on an entirely new foundation. The basic features of the new state structure will be dealt with further on (in Chapter II). Here one must only make clear the proper law of our new state from the beginning, against all the false juridical constructions which would lead the National Socialist state back into the tracks and the ways of the old and superseded thinking about the state.
2. The constitutional provisions valid today stipulate for a coexistence of more supreme offices of the Reich, as well as more possibilities of legislation.
a) The following are to be counted as supreme offices of the Reich: the Reich President, the Reich Chancellor, the Reich Government,[17] [18] the Reichstag, the Reichsrat.[18] [19] The question of the mutual relation of the many Reich offices cannot be resolved by means of the Weimar Constitution. The valid regulatory principle for the classification of the supreme offices of the Reich is that the Reich Chancellor is the political leader of the German people, politically united in the German Reich. The primary importance of the political leadership is a fundamental principle of the present-day public law. The rights of the Reich President are guaranteed. But gone is the abnormal situation of the last few years of the Weimar system, in which the Reich President was constrained to abandon the specificity of his high office, and function as stand-in for a political leadership.[19] [20] The office has in a way resumed the “constitutional” position of the head of an authoritarian state, qui regne et ne gouverne [20] [21] Nowadays, it is self-understood not only de facto but also de jure, that the Reich Chancellor Adolf Hitler holds a position in conformity with the state law, that is, not comparable to the position of any of the preceding chancellors, either in relation to the Reich President or to the other members of the Reich government. The political “leadership” exercised by Adolf Hitler is something more than and different from a “simple determination of directives,” according to Article 56 of the Weimar Constitution.”[21] [22]
b) Besides the coexistence of the said offices, there is the coexistence of varied legislative possibilities.[22] [23] The normal way of today’s legislation is that of the decree of the Reich Government (Article 1 of the provisional constitution of 24 March 1933).[23] [24] Moreover, the Reich Government has the possibility to question the people by way of the ballot, precisely about laws and regulations (the law of 14 July 1933). The legislative possibilities recovered from the Weimar Constitution (such as the voting by the Reichstag in virtue of Article 68,[24] [25] and the plebiscite in virtue of Article 73[25] [26]) are still equally valid. Finally, the right of the Reich President to issue decrees with the force of Reich laws, according to Article 48, paragraph 2,[26] [27] is still effective, and to be exercised in particular cases.
In the face of this variety of legislative possibilities, the question remains of their hierarchical order and their mutual relationship. Here, too, the question cannot be solved through formalist and sophistical interpretations of the words of the Weimar Constitution. The public law of the National Socialist state must rather enhance the awareness of the fact that the absolute priority of the political leadership is a positively effective basic law of today’s state. As a consequence of the application of this fundamental law, the liberal constitutional separation of the executive from the legislative is cancelled, and the government assumes a true, formal, legislative right (which, by the way, is expressedly acknowledged in Article 1 of the provisional constitution of 24 March 1933); in addition to all this, every legislative initiative is in principle a matter for the government. An appeal of the Leader to the Reichstag is still of consequence, and through it, perhaps, to the Reich legislation in such an event.[27] [28] On the other hand, it is not possible either de facto or de jure to convene the Reichstag against the will of the Leader (in virtue of the alleged right of one third of the members, in conformity with Article 24[28] [29]), and there to present a so-called bill of initiative. Even the referendum, and the popular legislative procedure of the Weimar Constitution give way to the new right of the Reich Government to popular consultation.
The subsequent question of the relation between a law of the Reich Government and a law brought forth by popular consultation may equally be answered on the grounds of accepted National Socialist principles. The Reich Government acknowledges the authority of the people’s will which it has called upon, and as a consequence, considers it binding. In no way does it assume the right simply to abolish a law of the Reich, based on popular consultation, by means of a new Government law. It is another matter altogether, if in a completely changed situation, the popular law no longer corresponds to the facts and becomes meaningless. In that case, it is up to the political leadership to decide the form in which a new and necessary measure is to be taken, and which of the means available in that case—new popular consultation, the reorganization of the Reichstag, a Reichstag resolution, a Government law—may be used to that end.[29] [30]
The new elections for the Reichstag, which by a decree of the Reich President of 14 October 1933 (RHBl I, p. 729) were set for 12 November 1933, are meant only as an integral part of the great plebiscite of the same day on which the German people will assume a foremost position in the politics of the Reich government, and make itself heard. Previously, in the Weimar system, the so-called elections had long lost their true elective character. As it has been repeatedly remarked, they had become a plebiscitary option of the masses of voters between five or six incompatible programs and ideologies, an option that split the German people into as many incompatible parties.[30] [31] The danger of such a pluralistic division of Germany into several totalitarian parties has been quelled in the one-party state of the National Socialist Germany. Thus, the election has become a response of the people to the appeal launched by the political leadership. That character of appeal of the reorganized Reichstag and its connection with the plebiscite became evident on 12 November.
Source: Carl Schmitt, State, Movement, People: The Triadic Structure of the Political Unity, ed. and trans. Simona Draghici (Corvallis, Oregon: Plutarch Press, 2001).
Notes
[1] [32] In the English-language literature, this law is routinely translated as the “Enabling Law.” As there was no question of enabling or disabling anyone, but of surrendering the power of making laws for the whole country to Hitler’s government, it has been thought more correct to translate “Bemächtigung by “empowerment” throughout. Besides, “Macht,” the root of the German term, has the words “might,” “force,” “power,” as English equivalents. As for the Law proper, it contained five sections: 1 and 5 gave the federal government the power to enact laws for four years without the cooperation of the Parliament (Reichstag); section 3 provided that the laws enacted by the government were to be drafted by the Chancellor and were to come into effect on the day after their publication in the Official Gazette of the Reich; finally, sections 2 and 4 stated that in its legislation, the government had the power to deviate from the constitution, and also to conclude treaties with foreign states, the only reservations being those that concerned the institutions of the two federal chambers.
[2] [33] Article 3 of the Weimar Constitution laid down that the colors of the Reich were black-red-gold, and the mercantile flag was black-white-red with the Reich’s colors in the inside upper right angle. Black-red-gold were the colors flown by the liberal student movement in the years 1848–1849, whereas those of the North Germanic Confederation, and eventually of Bismarck’s new German Empire had been black-white-red, a combination of the Prussian black-and-white, and the Hanseatic white-and-red flags.
[3] [34] This qualification of the mortal enemy was all the more necessary as Carl Schmitt had been known as an advocate of the suppression of both the Communist and the National Socialist movements and their affiliates.
[4] [35] The law enacted by the German government, under the signatures of the Reich Chancellor, the Reich Minister of the Interior, and the Reich Minister of Justice, contained only two articles, as follows: “1. The National Socialist German Workers’ Party constitutes the only political party in Germany. 2. Whoever undertakes to maintain the organizational structure of another political party or to form a new political party will be punished with penal servitude up to three years or with imprisonment up to three years, unless the action is subject to a greater penalty, according to other regulations.”
The Reichgesetzblatt was the Official Gazette of the Reich. It will appear in the abbreviated form, RGBl, in the rest of the text.
[5] [36] Likewise translated as “the law on the guarantee of juridical peace,” it was a Reich government law which promulgated the death penalty or forced labor for fifteen years or in perpetuity, or even a more severe punishment to whomever undertook to kill, incite to kill, or plot the murder of a judge, or a prosecutor, an assessor, a witness, or a civil servant employed by the criminal political police, the railway, forest and municipal police, the security service, or a member of the armed forces, of the SA and other paramilitary organizations protecting the party, a party official or a member of the German flying club. Furthermore, a similar sentence was to be meted to whomever compiled and disseminated any document falsely justifying acts of high treason, and to whomever tried to introduce it inside the German borders and disseminate it, fully aware of its contents, as well as to whomever inside the country sympathized with a highly treasonous act committed abroad. On the other hand, all those who attempted to introduce and disseminate documents of an anti-national purport into the country, with a view to organizing political parties, inciting, provoking, and making false declarations, were punishable up to five years of hard labor.
[6] [37] Latin legal phrase, meaning “the authority of a constituted matter,” that is, a matter that becomes authoritative in virtue of the fact that it is established by law.
[7] [38] By the law on popular consultation, the Reich government, whenever it suited it, assumed the right to demand the approval of the people for measures, laws or changes in the constitution, undertaken by the government. As Chancellor and Leader, the title under which he combined his Party’s leadership with the office of the Reich President in 1934, Hitler resorted to plebiscites to obtain popular confirmation of his policy and various decisions, and consequently, as a legitimating means, but shunned referenda, by which he would have surrendered the decision to the people and so deprived himself of control. Three important laws came out of the Reich Chancellery on 14 July 1933. Besides the law on plebiscites and that on the reconstitution of political parties (see note 4 above), the law was promulgated on the compulsory sterilization for individuals affected by hereditary illnesses or other incurable deficiencies.
[8] [39] The German term for parliament or national assembly has been left untranslated in both texts. One reason was an attempt to avoid translating “Reich” by “Empire” and so lend the word the significance which it had before the Emperor’s abdication in November 1918. Moreover, with the dissolution of the political parties, it changed into a drastically different forum, of the National Socialist Party alone, that was convened at Hitler’s pleasure, as a quasi-plebiscitary organ.
[9] [40] Left untranslated in the text, the Reichsrat was the creation of the Weimar Republic, meant somehow to continue the tradition of the Federal Council in Bismarck’s Reich. Secondary in importance to the Reichstag, it consisted of representatives of the states which counted a total of sixty-six votes among them. Officially, the members of the provincial governments were the chief delegates of their states in the Reichsrat, but for the routine work of the assembly they were allowed to appoint their own high officials to represent them instead. During the Weimar Republic, every law was expected to be passed by the Reichsrat which could be overridden by the Reichstag, though, in case of opposition. With the elimination of all statal attributes of the provinces by Hitler in January 1934, the Reichsrat lost its reason for existence, and was dissolved by a law of 14 February 1934.
[10] [41] Adopted in April 1924, the Dawes Plan, named after its initiator, American lawyer and financier Charles Gates Dawes (1865–1951) who a year later became US Vice President, it was designed to balance Germany’s budget, stabilize its currency, and enable her to pay the imposed war reparations without setting any final total amount and term of payment.
[11] [42] See for instance, Medicus’ remarks on the Reich law of 23 March 1933 in Deutsches Recht [German Jurisprudence] by Pfundtner-Neubert, Berlin, 1933, and Scheuner in Leipziger Zeiteebrift, August 1933, p. 903—Author’s note.
[12] [43] Article 76 referred to the possibility of revising the constitution by legislative means, that is, in the presence of two thirds of the total legal number of the deputies of the Reichstag, by means of a majority of two thirds of their votes. On the other hand, a popular initiative for any constitutional revision had to rally the majority consent of a popular referendum. Furthermore, the Reichstag could overrule the Reichsrat’s veto in the matter, and have the Reich President promulgate the amendment within a fortnight, unless the Reichsrat demanded a referendum.
[13] [44] Despite a monster electoral campaign, Hitler’s movement garnered only an additional five and a half million votes, totaling 43.9 per cent of the overall number of votes cast. He needed his nationalist allies to get the bare majority of seats in the Reichstag (288 plus 52 in a house of 647 seats). The 5 March 1933 elections were the last multi-party elections, as Hitler then embarked upon his all-out offensive against his political opponents and allies alike.
[14] [45] I presented this interpretation immediately after the publication of the law (on 31 March 1933, for the first time, at the Conference of the German Society for the Promotion of Political Science, at Weimar). It seems that in the meantime it has caught on. It has assumed a special significance for that matter when the Reich State Secretary for the Interior, Dr. Pfundtner, adopted the same standpoint, and described the law as a “provisional constitution” (lecture delivered at the Administrative Academy of Berlin, on 4 July 1933, Fascicle 1 of the Public Administration in the New Reich. Berlin, 1933)—Author’s note.
[15] [46] The filling of a power vacuum in a country’s governance is enough justification in a secularized world for whomever undertakes it successfully. If the Weimar Republic emerged in the power vacuum created by the Emperor’s abdication, the assumption of the legislative power by Hitler could be justified by analogy with that voluntary transfer. Moreover, in circumstances in which normative positivism prevails, the legality of the act as such is its legitimation.
[16] [47] Article 1 of the Weimar Constitution consisted of two sections: “(1) The German Reich is a republic, and (2) The political power comes from the people.” From its first statement, the constitution reflected the difficulties encountered while attempting to placate all the conflicting trends. Hence the inherent contradiction: the Empire (Reich) is a republic!
[17] [48] After the March 1933 elections, the Reich government changed its composition from a political coalition cabinet to a legislative government of experts selected and appointed by the Chancellor who also could dismiss them at will. Eventually, his much reshuffled cabinet met for the last time on 4 February 1938!
[18] [49] The Economic Council of the Reich [Reichewirtschaftsrat], as well as the office of the representative of the Reich President, may be set aside. Notwithstanding the law of 5 April 1933 (RGBl, I, p. 165), the Economic Council of the Reich is a transitional body with an unclear purport as long as its lot has not been decided through the elaboration of a social constitution of professional organizations. As regards the representation of the Reich President, according to the law of 17 December 1932 on the representation of the Reich President (RGBl, I, p. 547), in every case of impediment, even the shortest, on the part of the Reich President, he must be represented not by the Reich Chancellor but by the President of the Supreme Court of the Reich. As it is known, this measure was taken at a particularly gloomy time for the multi-party state of Weimar. Its sense and aim lie in the fact that in such a pluralistic system, the parties, fighting among themselves, had no unitary political will, and at the most, could all converge only upon a political zero point. In the National Socialist state, which is founded on the leader principle [Führerprinzip], a regulation like that, emerging from such motives, is absurd. Therefore, even without its expressed abolition, the law of 17 December 1932, in my opinion, is as little valid as the other constitutional provisions of the Weimar system that no longer correspond to the present law. Were a special repeal of this law considered necessary, which perhaps would not be excessive, for psychological reasons in our period of transition, it is however not indispensable either constitutionally or juridically—Author’s note.
Editor’s note: There was no follow-up of that law as no new constitution was ever to be written in the twelve years of National Socialist rule. On the other hand, the “gloomy situation” refers to the short spell when Hindenburg, the Reich President had been refusing to entrust Hitler with the formation of a cabinet in the aftermath of the November 1932 elections. The law of 17 December 1932 was a National Socialist sponsored bill meant to prevent the then Chancellor Schleicher to assume the President’s powers in case of latter’s incapacitation, or in the event of his death. As Schleicher had been released from any political office and Hitler himself had become Chancellor, that law was an obvious impediment to his assumption of presidential powers, and was soon to be replaced by a government law of Hitler’s own making.
[19] [50] Reference to the formula of government by presidential decree which was practiced in Germany in the last two years of the Weimar Republic, when the Reichstag turned dysfunctional, reluctant, or unable to expedite necessary legislation, particularly in order to solve the financial crisis. Although he disliked Hitler personally, it was the latter’s assurances that he would not be burdened with the problems incumbent on the chancellor that made President Hindenburg relent and appoint him Chancellor. It seems to have been one of the very few promises which Hitler ever kept.
[20] [51] French sentence meaning “who reigns but does not govern,” it had a wide circulation in the liberal nineteenth century. According to Carl Schmitt, it was a translation of the Latin sentence Rex regnet sed non gubernat, which round 1600, was directed against Sigismund III Vasa (1587–1632), King of Poland. (See Carl Schmitt, Politische Theologie II, ch. 2, sec. 2, Berlin, 1970.)
[21] [52] Article 56 of the Weimar Constitution defined the office of Reich chancellor as the duty to trace out the guiding lines of policy for which he assumed responsibility before the Reichstag. In addition, it stated that each minister had to manage the affairs of the department in his charge fully independently, within the limits of those directives, and for which he was accountable to the Reichstag.
[22] [53] Indeed, the range of legislative possibilities would surpass anybody’s imagination. It may be said that any order issued in the name of any public body eventually acquired the power of law, as soon as it was made public in written form and met with no objection from the interested public administrative departments.
[23] [54] That is: “The laws of the Reich may be enacted according to the procedure stipulated by the Reich constitution, but equally by the Reich government. This disposition applies to the laws defined by Article 82 §2 and Article 87 of the Weimar Constitution.”
[24] [55] Article 68 contained two clauses: the first stated that the right to originate legislation belonged to the Reich government and to the members of the Reichstag, and the second affirmed that bills of the Reich were passed by the Reichstag.
[25] [56] Article 73 listed four cases in which a referendum could be called: (a) when the Reich President so decided within a month from the passage of e bill by the Reichstag and before its publication; (b) when the publication of a bill was adjourned by the motion of at least one third of the members of the Reichstag, and a demand was made for its submission to a referendum by twenty percent of the electorate; (c) when ten percent of the electorate presented a popular initiative, which needed to be brief and had first to be submitted by the government to the Reichstag for its opinion (in the case in which the Reichstag enacted the draft without amendments, no referendum for the popular initiative was deemed necessary), and finally, (d) in connection with the legislation for the budget, taxes, and wages, when the Reich President alone had the right to call a referendum. The procedure for referenda and popular initiatives was established by another law of the Reich. Everything was indeed quite complicated, and unpredictable as far as the results were concerned. That makes it easy to understand Hitler’s preference for plebiscites which only confirmed his decisions whenever he needed confirmation either as self-assurance or more likely for propagandistic effects in the international arena.
[26] [57] Paragraph 2 referred to the necessary measures which the Reich President could take in case security and public order were seriously impaired or compromised within the German Reich, in order to restore them, included among the measures were the use of armed forces and the partial or total suspension of the basic rights guaranteed by other articles of the Constitution.
[27] [58] In other words, the one-party Reichstag elected in November 1933 had no legislative initiative of its own. It only could formulate the decisions submitted by the Reich Chancellor at his pleasure, and without any debate, into Reichstag resolutions. Besides, the Reichstag convened only at the chancellor’s pleasure on its new and provisional premises, the Kroll Opera House, after the 27 February 1933 fire at the Reichstag building.
[28] [59] Article 24 of the Weimar Constitution stipulated quite the opposite, namely, that the Reichstag was to convene each year on the first Wednesday of the month of November at the seat of the Reich government. It could be convened sooner by its Chairman, at the request of the Reich President or of at least one third of the deputies.
[29] [60] Hitler kept all his options open, so to speak, not only in matters of decision-making but also in the implementation of decisions: the Weimar Constitution was never abrogated officially, and other laws of the imperial era remained valid. Various, often contradictory, decrees and regulations were added to them, while local authorities, party or administrative, produced their own regulations and commands, vying in their eagerness to anticipate the Leader’s will. All this accumulation of rules and regulations generated and perpetuated a fog of apprehension and uncertainty, on the one hand, while on the other, it enhanced the self-satisfaction of the various categories of “legislators” who enjoyed and indulged their undreamt-of power, whether real or merely imaginary.
[30] [61] Reference to his article “Further Development of the Total State in Germany [62],” published originally in the February 1933 issue of Europäische Revue. See in particular pp. 24–27 of the English translation included in Carl Schmitt: Four Articles, 1932–1938 (Washington DC, 1999).