HOW TO KILL DEMOCRACY: THE CONSTITUTIONAL LEGALITY OF THE ENABLING ACT OF 1933

The Roman legal tradition encapsulated the dangers of formalist deformations with the maxim summum ius, summa iniuria - the strictest law can become the greatest injustice. The Ermächtigungsgesetz represents precisely this perversion: a measure clothed in legality, passed through a semblance of constitutional procedure, but in substance dismantling the very constitutional order it claimed to preserve.

This article therefore argues that the Enabling Act of 1933 was unconstitutional both in substance and in procedure. Substantively, it violated the implied principle of constitutional supremacy and exceeded the emergency powers conferred by Art. 48, which were designed as temporary safeguards rather than mechanisms for permanently reassigning legislative power. Procedurally, its adoption under Art. 76 was tainted by the unlawful exclusion of communist deputies and by coercion through Nazi paramilitary presence, rendering the constitutional amendment process invalid.

The aim of this text is to demonstrate that the Enabling Act was not a lawful transformation of the Weimar Constitution but rather a legally invalid coup. By placing the Act within its contemporary constitutional context and analysing its validity under Art. 48 and 76, the article shows how legal ambiguity, institutional weakness, and political intimidation combined to dismantle constitutional government from within.

Historical background

Following the Reichstag Fire incident of February 1933, the emerging Nazi regime continued to apply pressure on its political opposition, blaming the communists for the conflagration and as a response to the alleged coup, the German liberties were severely limited under Art. 48 of the Weimar Constitution by the Reichstagsbrandverordnung – “Reichstag Fire Decree”.[1]

One of the key tools used to ‘legally’ assume full power in the Weimar Republic was the “Ermächtigungsgesetz” – “Law to Remedy the Distress of People and Reich,” commonly known as the “Enabling Act of 1933.” (The Act) and was a prime example of the Gleichschaltung – the Nazification of Weimar legislation which, aimed to consolidate the Nazi dictatorship.  The Act aimed at anything but addressing the severe challenges to the already weak Republic, and it gave Chancellor - Adolf Hitler, the power to issue and announce laws by completely circumventing the Reichstag in the legislative process.

Contemporary constitutional traditions

The interwar period in continental Europe saw a steady trend in states having written constitutions. Striking to restore the post-war order, the Kantian idea of a Republik became more prevalent among the states, shaping their constitutional identity by the overriding principle of the rule of law (Rechtsstaat). Their content varied, so did their durability, and it is particularly challenging to pinpoint the exact points of synergy. Nevertheless, they are exceptionally prominent where liberal-democratic frameworks with parliaments, civil rights, and separation of powers follow a Montesquieu-inspired model.

The Weimar Constitution largely followed this trend. It was a republic where its citizens were the sovereign.[2] The Rechtsstaat principle was not explicitly enshrined but, rather doctrinally inferred from the republican status of the state – something that reflects the trend in other constitutions, for example, the Polish one.[3] The Dutch constitution, by comparison, also reflects that and to this day does not expressis verbis outline its own fundamental system, but rather conjectures it through the structure of individual provisions, such as democratic representation of the people by States General,[4] an independent judiciary,[5] and equality before law,[6] deriving its constitutional identity from tradition, custom, and practice of continuous statehood, rather than from a written declaration.

Concerning the legislative process, it varied across the different countries. Under the Weimar Constitution, it was initially governed by a singular initiative - laws were proposed by the Reichstag members.[7] The state governments, via the Reichsrat, had the right to introduce or object to legislative drafts.[8] The Reichstag President had no negative power to veto. He was elected by the parliament,[9] and exercised his duty to sign laws into force and publish them pro publico,[10] and they took effect after a fortnight vacatio legis period. Nevertheless, the president had the power to “challenge” newly passed legislation by submitting it for the public plebiscite.[11] This reflects the Weimar’s experimental, mixed legislative system – with the unicameral Reichstag only challenged by Reichsrat, and the Reich president, plus direct democratic elements in the form of referenda.

By comparison, the Dutch law establishes joint legislative power. The initiative of bills lies on behalf of the King, with the Government, or with the Lower House of the States General,[12] resulting in a dual initiative, emphasising a strong parliamentary initiative, with the Members of Parliament having rights to introduce bills – setting an example for Weimar. Laws are enacted jointly by the Government and Parliament.[13]  The bills go first to the Lower House, then to the Upper House,[14] with amendments possible at both proposal and debate stages,[15] and become law once passed by States General and ratified by the King.[16]

All this shows that the Weimar Republic aimed for democratic mechanisms and consolidation of a more proportionate and liberal approach to state governance. However, there are grave reasons for why Weimar’s Constitution is retrospectively considered a very weak instrument, as its many ambiguities, imperfections, and questionable design decisions led to abuse.  

Critical legal analysis

The “Enabling Act” was characteristically short, but the power it conferred to the Chancellor was extraordinary. It permitted the Reich government to enact laws without the Reichstag, which set out parliamentary legislative procedures, shifting lawmaking power from the parliament to the executive. The following section examines the legality of the Act in light of the Constitution’s Art. 48 and 76. It first assesses whether the Act could be justified under Art. 48, which empowered the Reich President to take emergency measures in times of grave crisis, and then turns to Art. 76, which governed constitutional amendments, and discusses a broader question of Weimar’s constitutional law.

The question of constitutional supremacy

Art. 2 of the Act allowed government laws to deviate from the constitution itself, except regarding the Reichstag, Reichsrat, and the President:

“Laws enacted by the government of the Reich may deviate from the constitution as long as they do not affect the institutions of the Reichstag and the Reichsrat. The rights of the President remain unaffected.”

This essentially neutralized the rule according to a higher law doctrine (constitutional supremacy)– a rule that a constitution is the highest law of the land, and all other laws and actions must conform to it. In its very essence and theoretical foundation, it is the law that establishes and guides a state’s identity, its values and morals.[17] It exists for that very reason, to keep the governing powers in check and to establish boundaries within which they can operate to serve their people right. In legal theory and jurisprudence, it is exceptional to have a constitution that is not considered a ius cogens- sort of a norm. The constitutional tradition in a majority of democratic jurisdictions establishes one as a set of peremptory norms,[18] which can be derogated from only when the constitution itself is amended, in accordance with the doctrine of the rule according to a higher law.

The majority of modern constitutions contain such declarations expressis verbis, like the US,[19] Canada,[20] Poland,[21] Romania,[22] while others heavily imply it by subjecting the newly adopted acts to the scrutiny of constitutional bodies, like in France, Italy,[23] Spain[24] or modern Germany.[25] Therefore, it is a rigid rule that state constitutions are the state’s highest commandments and can only be overridden by international law. The Weimar Republic lacked such a declaration whatsoever. It mentioned the Reich law (within the meaning of acts delegated with federal application) as superior to laws of states inside the Weimar,[26] but it omitted the relationship between such acts and the constitution itself. Moreover, it lacked a strong constitutional court. Modern Germany enjoys the judicial review of the Federal Constitutional Court (Bundesverfassungsgericht), but the Weimar Republic had only the State Court (Staatsgerichtshof) – a judicial body that had the prerogatives of ruling on the liability of the Reich President and Ministers,[27] resolving federal and constitutional disputes within individual Reich states.[28] Despite these powers, the Court did not have the right to review the constitutionality of normative acts.

Hence, one can infer a peculiar structure of the Reich law from the Constitution – one could describe it as a cascade of hierarchy without the ultimate authority: the laws of individual states within Weimar were secondary to the law of the Republic – in practice, it meant the overall legal landscape of acts with the federal level of application deemed supreme, including the constitution itself, served as the constitutional law of Weimar. This meant, that from a jurist point of view, the Reich laws could potentially run contrary to the constitutional rules, as there was no positive obligation on the lawmaker to adhere to it, given the same ‘weight’ and importance of federal acts and the Constitution, and the lack of a judicial body that would ensure that compliance. Therefore, while the Constitution’s supremacy was possibly doctrinally inferable from procedures of enactment of constitutional amendments more strict than ordinary legislative procedures and the republican status of Weimar as a state, it is clear to see the great weakness in the way it was written. While the textual analysis limits the interpretation of supremacy, the theological understanding of constitutional law, for example through the lenses of Sensum, non verba spectamus and Scire leges non hoc est verba earum tenere, sed vim ac potestatem, conjunct with the constitutional aim of systemic certainty, allows for considering the Weimar Constitution as the supreme law of the Republic.

Legality under Art. 48

The Enabling Act was enacted while Art. 48 was in force, after it was activated by the “Reichstag Fire Decree” (Verordnung des Reichspräsidenten zum Schutz von Volk und Staat), issued by President Hindenburg.

The Weimar Constitution recognised the emergency situations that could potentially jeopardise the functioning of the Republic. Art. 48 was designed as a safeguard mechanism, as the Weimar framers wanted to ensure that the federation could defend itself against coups, insurrections, or rebellious states. In case of non-fulfilment of constitutional obligations of a state, the Reich President could intervene with military force, forcing it into compliance.[29] The legislator did not define the emergency or the “serious threats to public safety” explicitly, giving the President a wide scope of interpretation. Most importantly, however, it granted the corruptive power to suspend civil rights under Art. 114 (personal liberty  and habeas corpus), Art. 115 (inviolability of the home), Art. 117 (secrecy of letters/post/telecommunications), Art. 118 (Freedom of expression, press and ban of censorship), Art. 123 (freedom of assembly), Art. 124 (Freedom of association) and Art. 154 (Property rights), in the name of restoring order. While the Reichstag had the power of oversight and could demand the emergency measures to be revoked, without the clear procedure, the legal uncertainty, and the potential for abuse were very high.

But despite the abusive power to derogate civil rights, Art. 48 did not confer the rights to authorize a permanent transfer of the legislature’s essential powers. The textual interpretation of the provision simply does not grant the President or the executive an unlimited power to transfer the legislature’s fundamental function to the cabinet. Even in the interpretation granting the widest margin of appreciation, Art. 48 was reactive to suppress immediate disorder and not constitutive to reassign powers. The theological understanding does not grant such powers either, given that doing so would substantively jeopardise the republican structure of checks-and-balances, running contrary to the system in place. The Act’s substantive grant under Art. 2 - allowing laws that deviate from the constitution — goes beyond the ordinary emergency-decree history and purpose of Art. 48, resulting in the President acting ultra vires.

Therefore, the Enabling Act of 1933 cannot be justified under Art. 48, as the Constitution never authorized a permanent transfer of legislative competences to the executive branch. Both textual and teleological interpretations show that Art. 48 was designed to safeguard the Republic, not to enable its dismantlement. It was an ultra vires exercise of presidential abuse of power that used the provision in question to enact something fundamentally contrary to the Weimar democratic aim.

Legality under Art. 76

Moving on with the analysis, the Constitution provided for its amendment under the procedure of Art. 76. It required a law to be passed by the Reichstag, containing the amendment itself, and enacted by two-thirds of the legal number of members to be present and at least two-thirds of those' present to consent.

The procedure was violated, however, as the legal number of members was not present on the date of the vote on the Act. The Reichstag president - Herman Göring, illegally excluded the 81 lawfully elected communist deputies from being counted toward the constitutional quorum, reducing the quorum from 432 to 378 – a decision that “(...) had no legitimacy in law whatsoever.”[30] This fact, in conjunction with the SS and SA units threatening presence in the Chamber at the time of the vote, meant that while “technically” passed by the Reichstag with the required two-thirds majority, the Act was de facto a “pseudo-legal” measure[31]—a piece of emergency legislation pathetically disguised as constitutional but achieved through fraud, coercion, and terror.[32]

Therefore, it is reasonable to argue that the Enabling Act was legally invalid from its very conception. Not only was it a law that ran contradictory to the established constitutional values and to the rules of the rule according to a higher law doctrine, but it was also enacted in a flawed procedure under Art. 76 under duress, deeming it void ipso iure, as the members of the Reichstag had the legal obligation to follow nothing but their conscience.[33]

Conclusions

To conclude, the Enabling Act of 1933 arguably stands as a paradigmatic example of a deeply anti-democratic and invalid law. By permitting the Reich government to legislate independently of the Reichstag and even to deviate from constitutional norms, it undermined the principle of constitutional supremacy that, while not expressly codified in the Weimar Constitution, was doctrinally inherent in the republican framework of an implied Rechtsstaat.

When scrutinised under Art. 48, the Act cannot be justified. The emergency powers conferred on the President were designed as reactive safeguards to restore order in times of crisis, not as constitutive powers to permanently alter the structure of governance. The Act’s delegation of legislative competence to the executive went beyond the textual scope, teleological aim, and systemic balance of Art. 48, rendering the President’s assent to it an unlawful act. Correspondingly, under Art. 76, the Act was procedurally defective. The exclusion of Communist deputies from the quorum, combined with the coercive presence of SA and SS forces in the Reichstag, corrupted the legal validity of the constitutional amendment procedure. The conditions of duress, intimidation, and manipulation nullified any claim to genuine parliamentary consent under Art. 21.

In consequence, the Act was invalid both substantively and procedurally - substantively because it contradicted the higher-law nature and republican purpose of the constitution, and procedurally because it failed to meet the strict requirements for amendment under Art. 76. Its passage hence represents not a lawful transformation of the Weimar Constitution but a pseudo-legal coup, effected under emergency decrees and Hitler’s political terror. It demonstrates the terrifying extents to which the authoritarian movements within a democracy can reach in order to seize power, if only a legal system is vulnerable enough.

[1] The Editors of Encyclopaedia Britannica, ‘Reichstag Fire | Summary, Significance, & Facts | Britannica’, Encyclopædia Britannica (2019) <https://www.britannica.com/event/Reichstag-fire>.

[2] Die Verfassung des Deutschen Reichs 1919, Art. 68

[3] Ustawa z dnia 17 marca 1921 - Konstytucja Rzeczypospolitej Polskiej 1921, Art. 1, 2

[4] Grondwet voor het Koninkrijk der Nederlanden van 24 augustus 1815, Art. 50

[5] Ibid. Art. 116, 117

[6] Ibid. Art. 1

[7] Die Verfassung des Deutschen Reichs 1919. Art. 68

[8] Ibid. Art. 69, 74

[9] Ibid. Art. 26

[10] Ibid. Art. 70

[11] Ibid. Art. 73

[12] Grondwet voor het Koninkrijk der Nederlanden van 24 augustus 1815, Art. 82 §1 - 2

[13] Ibid. Art. 81

[14] Ibid. Art. 83, 85

[15] Ibid. Art. 84 §2

[16] Ibid. Art. 87

[17] Strouthes D.P., Law and Politics: A Cross-Cultural Encyclopedia. Encyclopedias of the Human Experience, Santa Barbara, Calif.: ABC-Clio, 1995, pages 48-58

[18] Claes M., Constitutional Law, [w:] J.M. Smits (red.), Elgar Encyclopedia of Comparative Law, Cheltenham, UK – Northampton, MA, USA: Edward Elgar, 2006, pages. 187-199, ISBN 978-1-84542-013-0.

[19] Constitution of the United States of America, 1787. Article VI §2

[20] Constitution Act, 1982. Section 52 §1

[21] Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997, 1997. Art. 8 §1

[22] Constituţia din 31 octombrie 2003 Constituţia din 2003, 1991. Art. 1 §5

[23] Costituzione della Repubblica Italiana,1947. Art. 134 - 137

[24] Constitución Española, 1978. Art. 9§1, Art. 161 – 163.

[25] Grundgesetz für die Bundesrepublik Deutschland, 1949. Art. 20 §3, Art. 79.

[26] Die Verfassung des Deutschen Reichs 1919. Art. 13 §1

[27] Ibid. Art 59

[28] Ibid. Art. 15 §3 and Art. 18 §7

[29] Die Verfassung des Deutschen Reichs 1919. Art. 68

[30] Richard J Evans, The Coming of the Third Reich (Penguin 2003), pages 415–420 <https://prussia.online/Data/Book/co/coming-of-the-third-reich/Evans%20R.%20Coming%20of%20the%20Third%20Reich%20(2005),%20OCR.pdf>.

[31] Ibid.

[32] Ibid.

[33] Die Verfassung des Deutschen Reichs 1919. Art. 21