Article 48 (Weimar Constitution) - History - Nazi Use

Nazi Use

On January 30, 1933, Adolf Hitler was named Chancellor of Germany. Lacking a majority in the Reichstag, Hitler formed a coalition with the Nationalists. Not long afterwards, he called elections for March 5. Six days before the election, on February 27, the Reichstag Fire damaged the house of Parliament in Berlin. Claiming that the fire was the first step in a Communist revolution, the Nazis used the fire as a pretext to get President von Hindenburg to sign the Reichstag Fire Decree, officially the Verordnung des Reichspräsidenten zum Schutz von Volk und Staat (Presidential Decree for the Protection of People and State).

Under the decree, issued by von Hindenburg on the basis of Article 48, the government was given authority to curtail constitutional rights including habeas corpus, free expression of opinion, freedom of the press, rights of assembly, and the privacy of postal, telegraphic and telephonic communications. Constitutional restrictions on searches and confiscation of property were likewise suspended.

The Reichstag Fire Decree was one of the first steps the Nazis took toward the establishment of a single-party dictatorship in Germany. With several key government posts in the hands of Nazis and with the constitutional protections on civil liberties suspended by the decree, the Nazis were able to use police power to suppress, intimidate, and arrest their opposition, in particular the Communists. Hitler's subversion of the Constitution under Article 48 thus had the mark of legality.

The March 5 elections gave the Nazi-DNVP coalition a narrow majority in the Reichstag. Nonetheless, the Nazis were able to maneuver on March 23, 1933 the passage of the Enabling Act by the required two-thirds parliamentary majority, effectively abrogating the authority of the Reichstag and placing its authority in the hands of the Cabinet (in effect, the Chancellor). Over the years, as a measure of how Hitler gave his dictatorship the stamp of legality, thousands of his decrees--such as those that abolished all other political parties apart from the Nazis and enlarged Hitler's powers--were based explicitly on the Reichstag Fire Decree, and thus on Article 48. Thus, for the next 12 years Hitler ruled under what amounted to martial law.

The misuse of Article 48 was fresh in the minds of the framers of the Basic Law for the Federal Republic of Germany. They decided to significantly curb the powers of the president, to a point merely ceremonial. Also, to prevent a government from being forced to rely on decrees to carry on normal business, they stipulated that a chancellor can only be removed from office if there is already a positive majority for a prospective successor.