The Weimar constitution, like ours, had classically liberal aspects that guaranteed freedom of speech, assembly, religion and the right to private property. Yet born in the context of near-civil war conditions between right and left, it also gave the nationally elected president the power to dissolve the parliament and hold a new election within 60 days. Its Article 48 gave the president the power, “if public security and order” were “seriously disturbed or endangered within the German Reich,” to use the armed forces to restore them or suspend “for a while in whole or in part fundamental rights” guaranteed by the Constitution such as freedom of assembly and speech.
In his 2014 study, “Rethinking the Weimar Republic: Authority and Authoritarianism, 1916-1936,” the historian Anthony McElligott writes that in the crisis years after the beginnings of the Great Depression in 1929, the idea of “dictatorship within the bounds of the constitution” played a central role in “shifting the republic from democratic authority toward authoritarian democracy,” aided by those who sought a “strong leader” as an antidote to the apparent failure of party politics.
At the time, the conservative German theorist Carl Schmitt offered a legal rationale for the “exceptional dictator” equipped with power to overcome a crisis when parliament was too cumbersome to take needed action. Schmitt was what I have described as a “reactionary modernist": an anti-democratic conservative who saw liberal democracy as a formula for national weakness and paralysis. Schmitt saw in “the state of the exception” a powerful argument for the necessity of authoritarian rule, an argument that contributed to his support for Adolf Hitler’s Nazi Party.
The exaltation of the executive and the attack on the importance of the Reichstag were not only a matter of intellectual reflection. From 1930 to 1932, Chancellor Heinrich Brüning governed by presidential decree and eliminated parliamentary authority over the president and the military. Karl Bracher, in his now-classic 1969 study, “The German Dictatorship,” wrote that “from 1930 on, the existence of an authoritarian Presidential government not subject to the will of the people merely served to increase the trend toward radicalism.” In July 1930, Brüning dissolved parliament after it refused to support him in his authoritarian rule by emergency law and called for new elections. In the resulting September elections in 1930, the Nazis increased their representation in parliament from 12 to 107 deputies.
At the very time when the give-and-take of parliamentary compromise was needed most, Brüning’s dissolution of parliament and call for new elections exacerbated radicalization on the right and left. Two years later, in May 1932, President Paul von Hindenburg approved a change of chancellor from Brüning to the even more conservative Franz von Papen. On June 4, 1932, to win Hitler’s cooperation, von Papen dissolved the Reichstag, leading to elections on July 31 in which the Nazi Party received 37 percent of vote, the highest it ever received in a free election — in an indication of the radicalization that Bracher described. After the elections of September 1932, von Papen responded to a devastating vote of no-confidence (512 to 42) by again dissolving the Reichstag with a decree that was signed by President von Hindenburg. Speaking to the nation on the radio, Papen said that “only the formation of a truly nonparty national government … which is founded on the power and authority of a president elected by the people, can lead us out of the present-day decomposition of our national life to[wards] healthy future conditions.” McElligott notes that Brüning had used Article 48 to break the gridlock of parliamentary interests while Papen used it to abolish parliament altogether.
In January 1933, Papen convinced von Hindenburg to invite Hitler to become German chancellor and lead a coalition that included Papen and other conservatives willing to govern with the Nazis. On March 24, 1933, the Reichstag passed the Enabling Act, which gave Hitler executive authority without any pretense of parliamentary power.
Terrorism, racist legislation and the suppression of opposition political parties all found justification in a supposed state of emergency that allowed an end to democratic institutions. Before March 1933, the invocation of emergency clauses of the Weimar constitution had been normalized. The willingness of parliament to cede authority to the executive eased the path for the transition from authoritarian to totalitarian dictatorship and to lawlessness.
President Trump is not a latter-day Hitler. Nor does he have elaborate ideas about authoritarianism and the ills of liberal democracy, in the manner of German conservative chancellors such as Brüning or von Papen. He is not a man of ideas — but he is a bundle of authoritarian and illiberal impulses and desires. Like those German figures, he yearns for executive power unhindered by the checks and balances of a representative body. As unwise and politically disastrous as the emergency rule by Brüning and Papen were, the economic crisis and political polarization of those years were serious realities.
No one in the Trump administration claims we are in an economic crisis. And we have been fortunate that Trump hasn’t had to face a major foreign policy crisis. While his conspiracy theories encourage a fringe right wing, there is nothing comparable in this country to the Nazi Party of 1932. An insurgent left in the Democratic Party advocates “democratic socialism,” not, as was the case with the German Communist Party, a dictatorship. And as the statistics of Trump’s own government indicate, there is no immigration crisis at the southern border other than a humanitarian crisis as a result of Trump’s preemptory actions and the terrible conditions in four small Central American countries that the United States and others could and should seek to address.
Later generations of German leaders saw the emergency powers of the Weimar constitution as enabling Hitler’s rise to power. Convinced that the Nazi takeover of 1933 could have been prevented and that a second German democracy must avoid the pitfalls of the first, the authors of the 1949 Basic Law, the constitution of the Federal Republic of Germany (West Germany), declined to include the emergency provisions of the Weimar constitution. But to ensure the safety of their troops in West Germany, the Western allies insisted that the FRG include emergency provisions. After several attempts in the 1950s to do so, the Emergency Act (Notstandgesetze) was incorporated into the constitution by vote of the German parliament in May 1968 in response to student demonstrations of the time and in the face of significant protest them.
These laws were never invoked, even in the face of terrorist attacks in the 1970s and 1980s — attacks that included the murders of leading government officials, bankers and business leaders. They were not invoked during the deployment of hundreds of nuclear-tipped U.S. missiles in the face of large protests in 1983. Nor were they used to deal with a massive refugee influx from Syria and other countries in the Middle East in 2015. Indeed, over time, the powers of parliament in West Germany have remained intact. The stability of German democracy since 1949 has rested in no small measure on an understanding of how the invocation of emergency powers and the associated attack on the powers of parliament paved the path to dictatorship.
In view of Trump’s absurd declaration of emergency, now is a good time for Americans entrusted with protecting our democracy to ponder these lessons of German history.