by Ernst Fraenkel (Oxford University Press, 1941)
A good, though difficult, read. Fraenkel, a lawyer and German Jew, takes the reader through the development of the Nazi takeover of Germany in 1933 through the late 1930s. Once Hitler was able to accomplish three things – being named Chancellor, being given the authority to write and rewrite legislation, and declaring a state of emergency – the path was laid for autocratic rule.
It is beyond tempting to compare these authoritarian predicates to Trump’s near control of the Supreme Court (it is obvious they are treading carefully, so as to avoid an Andrew Jackson-style pronouncement that the Supreme Court made its decision, now let them enforce it). From his first day in office, he has flooded us with Executive Orders, many if not most of these representing an arrogation of legislative authority. In effect, he has been legislating from the executive branch. Along with this commandeering of legislative authority, he has brazenly taken over fiscal authority from Congress.
Trump is working hard to gain control of the Federal Reserve. His minions in the House are talking about eliminating the lower federal courts, a constant bane of Trump’s designs. [The Constitution only requires that there be a Supreme Court, and such inferior courts as Congress may from “time to time, ordain and establish.”] He controls both houses of Congress and has Republicans frightened over being primaried or lacking campaign funds, as Trump’s billionaire club is motivated to support only those who do his bidding and go along with his agenda. ICE agents are looking more and more like Hitler’s “Protection Squad” (SS), as green-card holders, refugees and asylees, and individuals on long-term temporary visas are threatened with, or are actually being, rounded up, detained and (in many cases) transported in violation of court orders. Finally, in a direct threat to Supreme Court precedent (ex parte Milligan), Trump and his “subordinates” have repeatedly suggested the possible necessity of declaring martial law.
Fraenkel fled Germany in 1938, resettling in the United States, where he finished the book in 1940.
Basically, the author writes about two aspects of the German state. The “normative state” is one of them, and it serves two purposes. It lulls people into a false sense of security regarding the dangers of autocracy. It does this by allowing those favored, those making up the Gemeinschaft (“community”), to rely on the rule of law to pursue rights and redress societal conflicts. It allows for the continued operation of capitalism, which requires predictable rules and government support for business operations in order to promote economic activity. In Nazi Germany, this aspect of the normative state was of benefit to large corporations and monopolies but not so for small business, since official government policy involved mass, and rapid, industrial militarization.
The second, and authoritative, aspect of the German state was the “prerogative state.” In this regard, there was no room for competing political parties or institutions. They had to be eliminated. Everything was subject to the political will of the Fuhrer and there was a perceived need for and acceptance of unlimited arbitrariness in government activity, depending upon what actions were unilaterally seen as necessary to enhance the Nazi view of the model Aryan state. There was no difference between the State and the Nazi party. They were one and the same. Having achieved such a level of political preemptive flexibility, while treating Jews and others as not comprising the German Gemeinschaft, this allowed the leadership to isolate, concentrate and eventually eliminate disfavored populations who were seen as “enemies of the state.”
Fraenkel does an excellent job (with maybe a little too much detail) of establishing the historical, legal and social considerations involved in Hitler’s rise to power. At one point in the book, he describes the German people, as participating in a kind of “neo-Machiavellian paganism.” This is a fairly easy case to make, as Machiavelli believed in religion, but only as servant to the State. Religion had a role – maintaining peace and order, and providing validation for strong centralized authority, particularly from the perspective that the ruler was divinely installed. However, religion was not equal or superior to political power, but subject to it. When in conflict, political power took precedence. However, to quote from Isaiah Berlin (The Crooked Timer of Humanity), “As for religion, it is for him (Machiavelli) not much more than a socially indispensable instrument, so much utilitarian cement…the sole promoter of solidarity and cohesion – he anticipated Saint-Simon and Durkheim in stressing its crucial social importance.” As many commentators do now, the author saw Nazism as a cult, one that “Having lost the belief in its own rationale, it elevates the cult of the irrational to the status of a modern religion.”
How relevant is that last quote. Many Christians believe in virgin births, resurrection from death, literal transubstantiation, angels, devils, walking on water, magically cured diseases, and an all-powerful and good supreme being – one they have never seen, and whose existence cannot be proved (or disproved for that matter). If this kind of belief is transformed, its manifestation embodied in a single person (like Trump), then it goes without saying that no amount of rational arguments against the man – his racism, xenophobia, arrogance, sexual predation, felony convictions, proven fraud, business failures, marital infidelity, or outright cruelty – would sway a devoted cult member from supporting him.
An interesting read for the times we are living in, perhaps in the same category as other books from the same period, such as the 1935 book by Sinclair Lewis, It Can’t Happen Here,” where dissent is outlawed, political enemies are put into concentration camps, and paramilitary groups terrorize citizens. As things seem now, we likely will continue on our current path, until we stop it.
I apologize for the autocorrect error. Even though I would not put it past him to declare “marital law,” it is now changed to what it should have read, “martial law.”