K. A. Schleunes Legislation: The Second Impasse Source: K. A. Schleunes, Chapter 4 in: The Twisted Road To Auschwitz ¯ Nazi Policy toward German Jews 1933-39, (Illinois 1970). Part A, B, C Part B The April legislation was completed later in the month with the announcement of a law affecting Jewish medical doctors and another restricting the number of Jewish students in German schools. On April 22, non-Aryans and communists were subjected to the “Decree Regarding Physicians' Services with the National Health Service” 22 . Henceforth patients covered by the National Insurance were informed their expenses would not be paid if they consulted a non-Aryan doctor. Once again the Hindenburg exceptions were applied. Jewish doctors who were war veterans or had otherwise suffered from the war were not subject to the decree. Exclusion from the National Health Service greatly weakened the economic position of Jewish doctors. The exclusion technique was shortly to be applied to other professions as well. The “Law Against the Overcrowding of German Schools” 23 was announced on April 25. Educational policy is usually a first target of revolutionaries. The Nazis were no exception. Their regime faced the imperative of perpetuating itself by passing its ideological insights to a generation of school children. Administrative efforts preceded the first Nazi legislation pertaining to schools. In Bavaria the Minister of Culture formulated a curriculum around Theodor Fritsch's “standard setting work on the Jewish question” 24 . In Berlin the Nazi school commissioner directed the city's Jewish teachers to take an immediate leave of absence to prevent incidents and unrest in our schools' 25 . The School Law of April 25 was not, however, a direct response to these pressures. For the most part it was concerned with the overcrowded conditions in German schools. The World War and Depression had led to a lag in school construction, which by 1933 had begun to raise serious problems. Rather than embark on a school construction programme, the Nazi chose to limit enrolment in general and to reduce the enrolment of Jewish students in particular. In the first instance German higher schools (primary schools were unaffected) were directed to limit the number of students in such overcrowded professional studies as law. Jewish students on the other hand were subjected to a numerus clausus . The number of Jews to be admitted to high schools ( Gymnasien ), technical institutes, and universities was restricted to 1.5 percent of the total enrolment 26 . With the concentration of German Jewry in the large cities such as Berlin and Frankfurt, the numerus clausus worked a particular hardship upon the Jewish community. Exceptions were made in communities where the percentage of Jews exceeded five percent of the total population. Here five percent of a school's students could be Jewish, but in no case was the Jewish percentage allowed to be greater. Consistent with the other April Laws, children of Jewish war veterans were not counted as part of the Jewish quota. The School Law was also the first of the Nazi laws to go slightly beyond the vague Aryan/non-Aryan definition of the Civil Service Law. A non-Aryan child had to have two non-Aryan parents. The child with one Aryan and one Jewish parent was still considered to be Aryan. The generosity of this legal definition did not have long to survive. The Jewish community was forced by the School Law to set up its own emergency school system. However, those Jewish children who were still allowed to attend schools can hardly to be said to have been advantaged. They suffered the full burden of the anti-Semitism, which was being institutionalised into the Nazi education structure. Each school had in its curriculum a course in racial theory which both Aryan and Jewish students were required to attend. Here they learned of Jewish racial inferiority in its many dimensions. The notebook of a young Jewish girl from Offenbach, the daughter of a rabbi, indicates the content of her teacher'' lecture on racial theory. The girl was thirteen when she recorded that: The Jewish race is much inferior to the Negro race. All Jews have crooked legs, fat bellies, curly hair, and an untrustworthy look. Jews are responsible for the World War. They are to blame for armistice of 1918 and they made the Peace of Versailles. They were the cause of the inflation. They brought on the downfall of the Roman Empire. Marx is a great criminal. All Jews are communists. They are the rulers of Russia 27 . Shortly thereafter this girl's teacher became director of the school. At first glance the School Law, along with the exclusionary laws affecting Jewish professional activity, would appear to have been an effective means of disentangling the threats of German-Jewish assimilation. The School Law supported the legislation requiring immediate exclusion of Jews from the professions by assuring that only a very limited number of Jews would be trained to enter these professions. Within a generation the vast majority of Jews would have been excluded from the life which characterised their assimilation into German society. Within two generations the exclusion would have been virtually complete. If dissimulation was the Nazi objective, its' Jewish policy was at least headed in the right direction. Whether Nazi patience was equal to the leisurely pof such a solutiowas, however, highly questionable. It was apparent to many Nazis that legislation regarding schools and professions did not strike at the heart of the Jewish problem. On April 8, the day after the announcement of the Civil Service and Lawyers Law, the Voelkischer Beobachter reminded the faithful that: Our aim is the biological separation of the Jews and German races'. Only a ban on German-Jewish marriages could effect such a separation, a measure finally incorporated by the Nazis in their last significant anti-Jewish legislation ¯ the 1935 Nuremberg Laws. The SA, too, served notice during the remainder of 1933 that it considered a few laws insufficient to deal with the Jewish problem. Boycotts and terrorisation of Jews continued unabated. Even the advocates of an orderly Jewish policy had little cause for satisfaction with the April Laws. They did not eliminate Jews from the civil service, law or medicine. Of 717 non-Aryan judges and prosecuting attorneys fewer than half (336 or 47 percent) fell under the exclusion provisions. Only 1,418 Jewish lawyers, or about 30 percent, could be removed from their professions 28 . At the same time no more than a quarter of the 4,500 Jewish doctors participating in the National Health Service could be excluded 29 . As with the boycott, the Nazis had miscalculated the nature of the Jewish problem. had been unaware that so many Jews had served in the World War or that so many others had been active in their professions prior to Weimar period. Hitler, in his letter to Hindenburg, said the Civil Service and Lawyers' Law had been in preparation for only a week. In that short time it was hardly possible for the responsible authorities to do their necessary homework. The only constant factor in these early anti-Jewish actions was a lack of thorough preparation. This was as true of the legislation as it had been for the boycott, and in both cases the consequences were similar. On the first day of the boycott it had been necessary to call for a retreat. Within a week after proclamation of the Civil Service Law, the regime announced that it would apply the law only to the top levels of the civil service. For the time being officials at the lower and middle ranks were exempt from its provisions. The problem of replacing even those few officials to whom the non-Aryan clause applied had no been envisioned. The thousands of highly qualified Nazi followers of whom Hitler had spoken in his letter to Hindenburg did not exist. Rigorous application of the law at all levels, as initially proposed, would have threatened the continuity of orderly administration. The four April Laws were merely the first of some 400 pieces of anti-Jewish legislation promulgated by the Nazis between 1933 and 1939. They were the first steps ia legal attack, which reached its peak in late 1935. In retrospect, legislation turned out to be the least important phase of National Socialism's attack upon German and European Jewry. Yet, in these early years it was the only approach officially approved by the party leadership. Hitler and his trouble shooters, Hess and Goering, expended considerable energy and ultimately the blood of the SA in suppressing or attempting to suppress a wealth of unofficial policies stemming from various quarters of the Nazi movement. For the time being he was unwilling to go beyond the reaches of the law, even though he himself defined what those reaches were. The April Laws were followed on July 14 by a Denaturalisation Law which allowed the Reich government to revoke the citizenship of people it considered undesirable 30 . The law could be applied to anyone who had settled in Germany after November 9, 1918 ¯ another way of saying anyone who had received his citizenship from the Weimar government. By order of the Interior Ministry on July 26, the law was to be applied first against the estimated 150,000 Eastern Jews in Germany 31 . An Eastern Jew ( Ostjude ), unless he had in some way contributed to the well-being of the German Volk , he could have his citizenship revoked. Although the law was designed to strike at the hated Ostjude , it actually served little practical purpose. Many Jews had indeed fled Eastern Europe following the pogroms during the latter decades of the nineteenth century. While large numbers had used Germany only as a springboard for emigration to the United States, others had chosen to settle in the land of Kaiser Wilhelm II. Most of these were eager to attain citizenship, but the difficulties of becoming a naturalised German were almost insurmountable. Each German State government had the right to veto any application for citizenship. Only by unanimous decision was such an application approved. The result was that most of these people, while they continued to live and even raise families in Germany, retained the citizenship of the country from which they had fled. For all practical purposes they became Germans, but unless they succeeded in acquiring citizenship, they, their children and their grandchildren remained “foreign Jews”. The situation did not improve markedly with the advent of the Weimar Republic. Naturalisation procedures underwent no basic changes. Any one state government could still veto an application for citizenship and when it came to a decision on a Jewish applicant the ultraconservative government of Bavaria usually chose to exercise its veto power. Consequently thousands of Jews whose grandfathers had settled in Germany and whose fathers had been born there were still citizens of foreign states. Following the World War the situation became even more confusing when the kaleidoscopic shift of Eastern Europe's political boundaries rendered thousands more Jews stateless. During the early days of the Weimar Republic many of these people had found their way to Germany. Very few had become German citizens. The Nazis were to discover that even they could not revoke the citizenship of those who were not citizens. Outright expulsion of these foreign Jews was also out of the question. By the latter 1920's anti-Semitic regimes had captured control of many east European states. Poland, the homeland of most of Germany's Eastern Jews, was especially eager to avoid their return. Moreover, Hitler was at the outset unwilling to alienate the Pilsudski regime. The negotiations which in January 1934 would led to a non-aggression pact with Poland were already underway. Hitler went through the motions even so. On March 23, 1934 a “Law Regarding Expulsion from the Reich” ¯ the Denaturalisation Law ¯ was proclaimed 32 . While it laid the legal foundation for the expulsion of the Eastern Jew, no such action was carried out until mid-1938. Because so few Eastern Jews were citizens, the Denaturalisation Law was largely a meaningless gesture. The law provided, however, that the citizenship of “anyone who acted contrary to the spirit of the Volk or state” could be revoked. For the moment such terms were more applicable to the emigres who left Germany in the wake of Hitler's seizure of power. Between August 1933 and late 1934 such German notables as Leon Feuchwanger, Philip Scheidemann, Kurt Tucholski, Albert Einstein, Heinrich Mann and even Otto Strasser lost their citizenship after having fled the Third Reich 33 . Ultimately, as with so many other early anti-Jewish measures, the Denaturalisation Law backfired. Some of the Eastern Jews had been German citizens. The revocation of their citizenship undermined eventually the later policy of forcing Jewish emigration. Without citizenship papers and a passport the possibilities of emigrating to another country were greatly reduced. Three further pieces of legislation affecting Jews came into effect in 1933. On September 29, a “Hereditary Farm Law” excluded Jews from owning farmland or engaging agriculture 34 . The effect of this upon Jews was minimal. Very few of them were engaged in farming of any sort. The Jewish peasant did not exist. Nonetheless the terms of the law reflected a classic example of racial thinking: The Reich government passes this law to secure the peasant foundations of our blood line through instituting the customs of laninheritance'. Jurist Frank's “substantive values” of blood and soil were guaranteed by the law. Paragraph thirteen established that only a German could be a farmer or Bauer . Persons of Jewish or coloured blood were excluded. In order to inherit a peasant holding, the German Bauer had to be able to trace his racial purity back to the year 1800 35 , before the emancipation of west European Jewry. Unlike the Farm Law the two remaining pieces of legislation in 1933 dealt a major blow to Germany's Jews. On September 29 German cultural life ¯ and therefore a major portion of Jewish cultural life ¯ was delivered into the hands of Joseph Goebbels. Chambers of Culture were established within his Propaganda Ministry, one each to regulate the film, theatre, music, fine arts, literature, broadcasting, and the press. Each chamber was to regulate completely the activity within its own province. The film chamber, for example was granted authority over everything from the producer and actors in a movie to the ticket collectors in the theatre. To be active in any of these areas required the licensed permission of the appropriate chamber president 36 . In one grand sweep Jews, if they were engaged in anything related to the film, music, or the press were subject of exclusion by Goebbels' decree. The law establishing the Chambers of Culture contained no Arclause. None was necessary. Goebbels had been granted authority to refuse admission of undesirables to any of the chambers. By avoiding the legal problems associated with the Aryan clause, Goebbels was unhampered in his exclusion of Jews. A more specific law dealing with journalists was effected on October 4 37 . Its provisions were similar to the ones, which established the chambers of culture. Henceforth journalists and editors needed official permission to carry on their work. Exclusion of Jews from the professions covered by the various chambers was eventually much more effective than it had been through the Civil Service of Lawyers' Law. During the next years thousands of Jewish artists, writers, actors, musicians, and Jews in related fields were to be excluded from participating in German cultural life. The technique of creating a bureaucratic structure outside of the regular state apparatus allowed the Nazis a freedom, which more ordinary legislation did not. By the late 1933 the official anti-Jewish energies of the Nazi regime seemed temporarily to have been spent. The feverish activity surrounding the boycott and the early legislation subsided into a period of relative calm. Even the SA seemed to let up occasionally in its rowdyism. Between the stick of Hitler's call to discipline and the carrot of Roehm being invited into the Reich's Cabinet, its revolutionary enthusiasm fell to a lower ebb. In July Hitlhad proclaimed the Nazi revolution to be ended 38 . By December the claim had taken on a ring of truth. The later months of 1933 witnessed what many people ¯ even Jews ¯ considered to be a withdrawal from the rabid phase of anti-Jewish policy. In Jewish circles the hope that the Nazi storm was subsiding gained currency. Exclusion from the professions or even from the schools did not necessarily mean the end of the Jewish community. More likely it meant a period in which Jewish participation in German life would be circumscribed. Nazi legislation had already provided for that. But the halt to the boycotts, along with Hitler's pronouncement that the revolution was ended, at least made continued existence possible. The Jewish community began to hope for a stabilisation of the status quo . In mid-November a leading Jewish newspaper, the Judische Rundschau reviewed the experiences of 1933 and speculated on their meaning. If we look at the events of the past year, we must note that many German Jews have lost their economic base for existence. Yet it appears from the pronouncements of authoritative sources that in the future our economic existence will be guaranteed, though limited, by the new legal situation. . . . In this light we can understand Dr. Goebbels' remark that what needs to be solved concerning the Jewish question has been solved by the government' 39 . Such hopes were buttressed in December by a joint announcement from the Economic and Interior Ministries that the Aryan clause was not applicable to the field of commerce 40 . Nazi party radicals and many in the lower ranks feared that the stabilisation for, which Jews were hoping was actually being effected. Hess' orders that all spontaneous anti-Jewish actions cease caused confusion and consternation among those who were pressing for more radical measures. The party leadership could hardly afford to ignore these sentiments. Goebbels addressed himself to this situation in September 1933. He chose the forum of the gigantic Nuremberg Party Rally, the gathering place for thousands of the SA and rank and file party followers. He spoke to them of domestic pressures with precluded a more radical Jewish policy and the foreign considerations, which made any sort of a Jewish policy a “heavy burden” for the Reich government. Despite this difficulty he asked for their perseverance 41 . Goebbels rarely was candid in public. His admission of internal and external pressures was a transparent effort to justify what to many of the assembled faithful seemed an un-ambitious Jewish policy. Confusion in the ranks was not dispelled by Goebbels' blandishments at Nuremberg. In January 1934, a local party official from Bonn sent a letter of complaint to Julius Streicher. The official had been planning to organise a boycott of Jewish business locally and had just received an order from Munich demanding the boycott be cancelled. He hoped Streicher would be able to tell him why. I have been very active in anti-Semitic affairs within our local party and have arranged among other things, many lectures on anti-Semitism. I know that you must be very busy, but I do hope you will be able to answer my question. Please tell me in what form it is still possible, despite the existing laws and orders, to carry on anti-Semitic actions and propaganda?' 42 . His confusion was real. He was a conscientious Nazi trying to do his duty. Many others like him shared his frustrations. There was little he could do about Germany's plight, but he could assist the Fuehrer in his campaign against the Jews. There were always a few Jewish shops to be boycotted or local Jews to harass. In this he could demonstrate his loyalty to the cause and contribute to its success. It accorded him a sense of contributing to the new Germany. But without a free hand against the Jew his only meaningful contribution was severely limited. Complaints of this sort were to no avail. During 1934 very few official measures of any public significance were being taken against the Jew. On the surface it appeared as if the Nazi regime was planning to allow Jews an economic basis for a continued, if circumscribed, existence. For what other reason would the government exclude the Aryan clause from commerce and business? Or why would it issue orders, which in effect protected Jews from its own followers? There were, to be sure, continued incidents of harassment and small-scale boycotting, but they did not have the sanction of the government. The purge of radical elements within the movement, especially of the SA leadership, in June 1934 brought for the most part even these “uncoordinated” incidents to an end. To many Jews these signs seemed to point in a promising direction. An estimated 37,000 Jews had left Germany in the wake of Hitler's take over. In 1934 the number dropped to 23,000 43 . Then, during the first months of 1935, some 10,000 of those who had fled began to return 44 , in hope of an improved situation for Jews in Germany. Legislative action against Jews was renewed on a very subdued scale in May 1935 with the announcement of a new Military Service Law 45 . The new law reintroduced general conscription and was, therefore, a major step in Hitler's plan for German rearmament. Its effect upon Jews centred on the question of who was eligible for military service. Aryan ancestry was an absolute prerequisite for entry into the services. Only under very unusual circumstances could a non-Aryan qualify. Even then he had to initiate an appeal to a review committee established jointly by the Ministries of Interior and War which would review the applicants' previous record, his political reliability and his general character. If he met this board's approval it was technically possible for him to be accepted for military service. It is hardly necessary to point out that this law was not a frontal attack upon the Jew. Only those Jews convinced of the virtues of military life were directly affected. Yet German Jewry had generally prided itself on the role of Jewish soldiers in defence of the fatherland. The Reichsbund judischer Frontsoldaten, a veterans group, which had internalised many German military values, was bitterly humiliated. Even the Jews less committed to military life did not fail to see the implications of the military law. By deeming Jews unfit to serve in the armed forces, it also made them citizens of a lesser rank. The effect of this new status upon the morale of German Jews is impossible to assess. It must be noted, however, that an overwhelming majority of German Jews were deeply attached to Germany, an attachment, which included an interest in its military defence. The Hand of the SS in Jewish affairs became publicly apparent for the first time in connection with the Military Service Law. It had been dealing with limited aspects of the Jewish question for some time, but only behind the official scene. On May 15, a few days before the Service Law was announced, the recently established voice of the SS, Das Schwarze Korps , published an editorial entitled “NO ROOM FOR JEWS IN THE MILITARY;” We advise Jews to give up their efforts to enlist in the military service. It would be better for them to throw their enlistment papers into the waste basket, avoiding military service as Jews have always done, and let it go at that'. In 1935 the bureaucratic and police network of Reich's Leader of the SS Heinrich Himmler, free from SA control, was beginning to function with some efficiency. It was also confident enough to express itself on issues related to military service and the Jews. Those who hoped for a Nazi retreat on the Jewish question were unaware that a structure entirely outside the traditional state apparatus and the restrictions of even pseudo-legality was already making its influence felt 46 . Although it reintroduced the Aryan paragraph for the first time since 1933, the Military Service Law represented no progress in defining the Jew. In fact its definition of the non-Aryan was less precise than it had been in the 1933 April Laws. The question of definition could be left unresolved as long as legislation dealt with the periphery of Jewish problem. The entire Nazi ideological structure rested on the assumption, however, that the Jew was evil because of his blood. His most monstrous crime had been to defile the purity of the Aryan race, not the infiltration of the civil service, the various professions, or even the German economy. If this basic aspect of the Jewish problem was ever to be solved, the regulation of marriages between Jew and German was inevitable. The logic of such a ban had not escaped racial radicals inside or outside the SA, nor the officials at the state marriage bureaux or Standesamter. Instances of local SA units pressuring Standesamt officials into refusing marriage licenses to “racially mixed” couples were common. Occasionally the officials would merely warn such a couple that their marriage was inadvisable 47 . At other times a license would actually be refused. In such instances, because the marriages were not illegal, some petitioning couples brought suit in the courts. The SA naturally expected the judges faced with these cases to uphold the spirit of National Socialist ideology. Without a law upon which to base a decision, however, the courts were at a loss to give their judgements legal sanction. The judge in these cases was caught between trying to maintain the law and attempting to placate the SA 48 . Marriage officials were caught in the same uncomfortable position. Understandably both judges and Standesamt officials looked to the Reich's Interior Ministry for guidance. A law, a decree, or even a directive would have given them some basis for their decisions. Nothing was forthcoming. Interior Ministry Frick, in early 1934, answered queries related to mixed marriages by emphasising the importance of Germany's image abroad: If our actions stay within certain legal boundaries, they will be better received at home and abroad' 49 . References: 22 Ibid., p. 222. 23 Ibid., p. 225 24 Voelkischer Beobachter, April 7, 1933. 25 Voelkischer Beobachter, April 2 and 3, 1933. 26 Solomon Colodner, ”Jewish Education under National Socialism”, Yad Vashem Studies 3 (1959): 161-180. 27 Denemann, ”Memoiren”, p. 21a. 28 Deutsche Justiz (1934), p. 950. 29 Bruno Blau, Das Ausnahmerecht fuer die Juden in Deutschland, 1933-1945, 2nd ed. (Dusseldorf, 1954), p. 7. 30 RGB1, I, 1933, p. 480. 31 Ibid., p. 539. 32 Ibid., p. 213. 33 Deutscher Reichsanzeiger und Preussischer Staatsanzeiger, August, 1933. Through November, 1934, passim. 34 RGB1, I, 1933, p. 685. 35 Maxine Y. Sweezy, The Structure of Nazi Economy (Cambridge, Mass., 1941), pp. 180-183. 36 See Derrick Sington and Arthur Weidenfeld, The Goebbels Experiment: A Study of the Nazi Propaganda Machine (London, 1942), pp. 111-113. 37 RGB1, I, 1933, p. 713. 38 Voelkischer Beobachter, July 17, 1933. 39 Judische Rundschau, November 17, 1933 (italics mine). 40 Central Verein Zeitung, December 7, 1933. 41 Dokumente der deutschen Politik und Geschichte, vol. 1, p. 183. 42 Collection: treicher, Folder No. 21, BDC (italics mine). 43 Werner Rosenstock, ”Exodus 1933-1939: A Survey of Jewish Emigration from Germany”, Year Book I of the Baeck Institute (London, 1956), pp. 373-390. 44 Judische Rundschau, May 10, 1935. 45 RGB1, I, 1935, p. 607. 46 The role of the SS will be treated in subsequent ch. 47 DokumeFrankfurter Juden , p. 217. 48 Loesener, ”Als Rassereferent”, p. 278. 49 Ibid., p. 271. Part C The question of race mixing was also of extreme interest to the obscenely minded Julius Streicher. His anti-Semitism had a peculiar sexual twist, which fed upon images of illicit relationships between Aryans and Jews. The pages of his Sturmer were filled with reports of rich, fat Jews raping innocent Aryan maidens. It was Streicher who introduced the notion of racial treason. Sexual relations ¯ and Streicher was mainly interested in illicit ones ¯ came to be referred to as examples of racial treason or shame. The SA was quick to mete out punishment to racial traitors and those who brought shame upon the Aryan race. SA men took pleasure in pillorying German prostitutes who failed to be racially selective in choosing their clientele. Prostitutes suspected of having been with Jewish clients were frequently marched through the streets carrying signs advertising their racial misdeeds 50 . The campaign to make Jewish-Aryan marriages illegal was led by Gerhard Wagner, the volatile Nazi medical chief and later Reich's Medical Leader. In November 1933, Wagner led a group of Nazi-oriented doctors to constitute themselves as the German Medical Association. This group, in a report on its research into Jewish blood characteristics, admitted failure in its efforts to identify a specifically Jewish blood type. While they could not recommend, therefore, a detailed program of racial hygiene, the doctors prescribed a preliminary ban on marriages between Aryans and Jews 51 . Failure to isolate the blood characteristics of Jewishness, however, undermined a legal dissimulation hinged directly upon identifying and defining the biological Jew. Hitler and Streicher excepted, there were elements in Nazism, which recognised the complexity of the problem. Not surprisingly, they were most often the lawyers charged with drafting the anti-Jewish legislation. In January 1935, the official organ of the League of German Jurists published a summary of the problems related to the racial laws. The author of the summary, Dr. Falk Ruttke, Director of the Reich's Office for People's Health ( Volksgesundheitsdienst ) called attention to the lack of clarity in racial terminology. While logic and consistency have traditionally been a special province of jurists and lawyers, it appears that since the Machtergreifung these faculties have eluded them. In looking through our racial laws it becomes apparent that we are lacking a certain conceptual clarity ( Begriffsklarheit ) in using such terms as “race”, “racial hygiene”, “eugenics”, and others which fall into the same category. There are oftentimes used different and contradictory meanings. . .' 52 The final and most complete attempt to arrive at a definition of the Jew began in September 1935, with the announcement of the most spectacular anti-Jewish legislation to date at Nuremberg Party Rally. A set of three laws, which quickly came to be known as the Nuremberg Laws, was designed to regulata whole complex of Jewish-Aryan relationships, including intermarriage. By the spring of 1935, there were indications that the Nazi regime felt prepared to renew its legislative attack upon German Jewry. Interior Minister Frick announced in late April that the concept of “mixed-marriage” would henceforth refer not to religious, but to racial mixing, as when an Aryan marries a Jew' 53 . On July 21, he ordered Standesamt officials to delay consideration of marriage license requests from racially mixed couples. The government, he said, plans shortly to legal regulations regarding the question of such marriages 54 .The guidelines which marriage officials had been requesting for two years were finally promised. A month went by with no announcement. By then Nazi energies were absorbed in planning the annual party rally scheduled for mid-September. These massive gatherings were a high point of the Nazi calendar 55 . Hundreds of thousands of party members gathered each fall in Nuremberg for a week of parades, pageantry, and speeches. Little of lasting consequence was produced during these rallies, nor was that their aim. They were calculated to renew the spirit and enthusiasm of the movement through a meticulously planned pageantry, unmatched in the twentieth century 56 . Giant parades, marching bands would be followed by more marching bands and more parades. The climactic moment would come when the Fuehrer himself would approach the Olympus-like rostrum to speak, whipping himself and his audience into an unrestrained frenzy. As the official slogan for this year's rally Goebbels had chosen “Reich's Party Rally of Freedom”. Hitler himself had decided at the last moment to add a special touch. There was to be a special session of the German Reichstag to end the rally on Sunday, September 15. For several weeks the Interior Ministry had been preparing a law prohibiting Jews from raising the Nazi colours. A solemn session of the Reichstag would make the law official. On Friday, two days before the rally was to end, Hitler suddenly decided the Flag Law alone did not warrant so special and dramatic a meeting of the Reichstag. Something more worthy of the occasion was required. With no previous notice the Fuehrer called upon his Interior Minister Frick to draw up legislation governing the question of German-Jewish blood relationships 57 . Hitler himself outlined the areas the laws were to cover. He wanted a law forbidding Jews and Aryans to marry, one forbidding them to have sexual relations outside marriage, and another regulating the employment of Aryan housemaids in Jewish homes. Together he wanted them entitled “Law for the Protection of German Blood”. If Hitler realised that he had asked for an overnight legal solution to the heart of the Jewish problem, he did not consider the complexities involved in his request. Frick, despite his earlier promise of similar legislation, was totally unprepared for such an assignment and in the holiday atmosphere of a party rally was unwilling to do the necessary work. He put his two assistants, Hans Pfundtner and Wilhelm Stuckart, both State secretaries, to work on some preliminary drafts. Without the appropriate documents and files in their Berlin offices, however, they could not go very far. Late that same Friday evening, Stuckart telephoned Berlin to speak with Dr. Bernhard Loesener, the man responsible for “Legislation on the Jewish Question” in Section 1 of the Interior Ministry. Loesener was ordered to fly to Nuremberg early the next morning and to bring with him the files he would need to draft the legislation. When he arrived at the Nuremberg airport the next morning an automobile was waiting to take him to police headquarters where Pfundtner and Stuckart had set up a temporary command post. Although a party member since 1931, Loesener had become disenchanted with the Nazis soon after they came to power. Instead of leaving the party, however, which would have ended his career, Loesener had decided to use his position to ameliorate the lot of Jews, a very delicate task because the slightest suspicion of his subversive activities would have had disastrous consequences for himself and his family. Stuckart's summons now offered him the opportunity to take the cutting edge off the new legislation. The impact of the new laws, he knew, would hinge upon the inclusiveness given to the legal definition of the term “Jew”. When he learned that Hitler himself planned to sign the laws, Loesener saw the chance to draft them so the least number of Jews would suffer. Nothing could be done, of course, for those whose ancestry was entirely Jewish. But the possibility existed, because of the rush, that Hitler could be manoeuvred into signing a law which would actually protect people whose ancestry was only part Jewish. A major portion of assimilated German Jewry would fit into this latter category, especially the children of the many mixed marriages contracted during the Weimar period. Fortunately for Loesener's purpose, both Stuckart and Pfundagreed that distinctions between various degrees of Jewishness should be defined by law. Whatever they were going to do had to be done quickly, and within the framework outlined by Hitler. The Reichstag session was scheduled for 11 o'clock the following morning. Loesener's plan ran into unexpected obstacles shortly after work on a first draft had begun. The arrival of an emissary from Dr. Gerhard Wagner, the Reich's Medical Chief, made their task more difficult. Wagner had a direct interest in any law, which protected German blood and had dispatched his representative to assure a strongly worded law. Fortunately for Loesener, Wagner's emissary was not particularly interested in legislative matters. His attention was taken up instead by a toy tank, which he happened to find in the police chief's office. With Wagner's assistant off in a corner playing with his tank, Loesener, Stuckart, and Pfundtner managed to complete a draft which included a distinction between Jew and half-Jew. Protocol required that Frick be the one to present the committee's proposal to Hitler. Frick, however, was staying in a villa across town. Loesener decided to make the cross-town delivery himself in order to equip the Interior Minister with arguments to counter any of the Fuehrer's possible objections. But it was almost impossible to get across the city. The narrow streets were packed with wildly cheering Nazis. Twice Loesener had to dash through twelve-abreast columns of parading SS units, only to discover, when he arrived at Frick's villa, that the Minister was unwilling to hear a briefing on the draft proposals. When Frick returned from his audience with Hitler, Loesener learned that at Gerhard Wagner's insistence, the Fuehrer had refused the draft and asked for a harsher law. The process of drafting another proposal, delivering it through Nuremberg's impossibly crowded streets ¯ first to Frick, then to Hitler and finally back again ¯ was repeated three times during the next fifteen hours. Around midnight, after seeing four drafts, Hitler asked that all the proposals be typed in their final form. He would make a decision in the morning. He had an additional request, which asked Frick to relay to Loesener at police headquarters. Would Loesener please prepare a basic Reich's Citizenship Law by tomorrow morning? Without such a law, it had suddenly occurred to Hitler, regulation of the Jewish situation seemed incomplete. It was 12:30 Sunday morning when Hitler's latest request reached the exhausted Loesener, Pfundtner, and Stuckart. Their immediate decision was to draft as meaningless a citizenship law as possible. Above all they determined not to tamper with the present citizenship status, Staatsangehorigkeit , of Jews. Under this status Jews were still accorded, at least in theory, the same legal protection as Aryan citizens. Within a few minutes they drafted a law creating an elevated but meaningless status to which only Aryans could aspire ¯ “citizen of the Reich” or Reichsangehoriger ñ which entailed no special privileges. Jews remained citizens of the state and continued to ethe rights of regular citizens insofar as these rights had not been affected by previous legislation. Frick took this proposal to Hitler at 1:30 A.M. and returned an hour later with the news that Hitler found it acceptable. There was still no word, however, about Hitler's decision on the four Blood Law drafts. The next morning, a few minutes before the Reichstag session was to begin, Loesener still had not heard the Fuehrer's decision. The Reichstag members were already seated in the improvised meeting hall when Loesener learned Hitler had a fourth and mildest draft proposal, the one, which included the provision that: This law applies only to full-blooded Jews'. Momentarily the scheme appeared to have succeeded. When Hitler read the law to the Reichstag, however, he deleted this all-important sentence. Without it the complexion of the law was changed entirely. The question of definition, or more specifically, to whom the law applied, was still unanswered. The “Law of the Protection of German Blood and Honour” 58 , as it was finally called, made “marriages between Jews and citizens of the state with German related to blood” illegal. Such marriages contracted in spite of the law, even if performed in a foreign country, would not be recognised by the Third Reich. Extramarital relations between Jews and Germans were like-wise illegal and punishable by a prison term. To make certain that the conditions for such relations were not created artificially, paragraph three made it unlawful for a Jew to employ a German housemaid who was under the age of forty-five. Violations on this count were punishable by a year in prison, a fine, or both. The sensational circumstances in which these laws were announced has obscured their meaning in the history of Jewish persecution in Nazi Germany. Hitler's own sense of drama, which led to the use of those circumstances has also contributed to the misunderstanding. After Buchenwald and Dachau it has become common to view the Nuremberg Laws as a major step in the Nazi anti-Jewish design. Not until Loesener's revelation about the ad hoc manner in which they came into being has a more accurate analysis of their meaning been possible. German Jewry initial reaction to the Nuremberg Laws reflected the cautious hope that an area of Jewish security had been created. If in exchange for Jewish acceptance of a circumscribed existence, the Nazis brought an end to boycott actions and propaganda assaults, that hope did not appear to be an impossible one. In late September the Reichsvertretung der Juden in Deutschland 59 , the collective voice of Germany's Jews, issued a statement expressing its willingness to work for a modus vivendi with the National Socialists. The Reichsvertretung was willing to view the Nuremberg Laws as the beginning to such a “tolerable arrangement” 60 . Nazi reactions in the months following the Nuremberg Rally lent substance to these hopes. To a foreign correspondent Hitler hinted that the attack on Jews was finished, if Jews themselves did not create “fresh tensions” 61 . Statements by Goebbels and Goering supported Hitler's contention. In the later part of 1935 and early 1936 the Nazi regime very deliberately soft-pedalled its anti-Jewish stance, not to encourage Jews, but to appease foreign sentiment. The 1936 Olympic Games were scheduled to be held in Berlin. A massive Olympic Stadium had been constructed and Hitler was determined to avoid any action, which might lead to the games being shifted elsewhere, something, which was being rumoured about in international circles. The loss of the Olympics would have been a serious blow to Nazi prestige. On September 1, 1935, even before the Nuremberg Rally, the Gestapo Headquarters in Munich was ordered to avoid all untoward actions because: Under all circumstances the 1936 Olympic Games, by will of the Fuehrer, must take place in Berlin' 62 . On December 3, the Interior Ministry, again upon Hitler's command, ordered that all anti-Jewish signs and posters in the vicinity of Garmisch-Partenkirchen, the scene of the Winter Games, be removed 63 .What many German Jews chose to see as a sign of good faith on Hitler's part was actually undertaken to guarantee the Olympics for Germany. Behind this public facade a matter of utmost importance to Jews was being settled. Until it was decided to what level of “Jewishness” the Nuremberg Laws would be applied, they had little meaning. When he arrived back at his office in Berlin, Loesener saw the copy of his draft in which Hitler had pencilled out the sentence, This law applies only to full-blooded Jews'. From this he could conclude only that the laws would reach further than the “full-blooded” Jew. How much further depended upon the supplementary decrees which had to follow. The decrees would ultimately stem from the Interior Ministry itself. Loesener, as the Ministry's racial expert, was once again involved in the discussions preceding them 64 . For the next eight weeks meetings to discuss the definition of the Jews were held every day, iSundays. Delegations of the party's racial radicals appeared almost daily to insure as inclusive a definition as possible. Their chief spokesman was usually Dr. Gerhard Wagner, whose presence in Hitler's entourage at Nuremberg may well have been responsible for striking the sentence, which made these meetings necessary. The party's representatives held that the concept “Jew” should include at least those with one-quarter Jewish blood, making anyone with three German grandparents and only one Jewish grandparent legally a Jew. Wagner at first insisted upon including even one-eighth Jews. Loesener and Stuckart carried on the struggle for a milder interpretation in the face of these demands, taking care to avoid suspicion by couching their arguments within a Nazi frame of reference. They reminded the party representatives that one-eighth Jews were also seven-eighths German. Too inclusive a definition would unnecessarily create enemies within elements, which heretofore had been loyal to the regime. Moreover, it would probably raise complications abroad. After two weeks of debate the discussions could reached an impasse. Only an outside authority could resolve the issue and only Hitler had that authority. At this point, Hitler invited a wide array of party leaders, along with Stuckart and Loesener, to a conference in Munich on September 29. Reports indicated the Fuehrer was going to resolve the question of the Jewish definition himself. The reports were false. The conference was finally no more than an occasion for one of those famous Hitlerian monologues. It began with Hitler delivering a detailed review of the history of German-Jewish assimilation and the problem it raised for the purity of Aryan stock. The expertness of his presentation astounded even Loesener. At the point where Loesener expected him to present his final views on Jewish definition, however, Hitler suddenly changed the subject to his plans of war. When he got back to the Jew, he concluded by saying the question of definition would have to be worked out by saying the question of definition would have to be worked out in conference between the party and the officials in the Interior Ministry. The meeting, which presumably had been called to resolve precisely that question was adjourned. Another six weeks of negotiation followed before a solution was reached. The “First Supplementary Decree to the Reichs Citizenship Law” was published on November 14 65 . By its terms a full or three-quarter Jew was legally Jewish and therefore subject to the Nuremberg Laws. On that point Loesener and Stuckart had lost. The point they had won was reflected in the position of the half-Jew (one with two Aryan and two Jewish grandparents) who was considered Jewish if: he was an adherent of the Jewish faith, he was married to a Jew, he was the child of a marriage with one Jewish partner, or if he was the off-spring of an illegitimate union between a Jew and Aryan. Someone with two Jewish on the basis of these four conditions, was legally a “Jewish Mischlin g” 66 . Crucial to this definition was the matter of religi. Nazi medical science had made no progress in isolating a specifically Jewish blood type. Nazi legislators had to assume, therefore, that religion somehow determined blood or otherwise that an equally mystical process forced someone with Jewish blood to accept Judaism. The absurdity of these assumptions bothered neither the doctor nor the legislator. An individual with only one Jewish grandparent was still legally Jewish if he was a member of the Jewish religious community. Anyone with less than one-quarter Jewish blood was considered to be of“German or closely related origins”. According to an estimate made by Rudolf Hess in early 1936, there were 400,000 to 500,000 full, three-quarter, or one-half Jews in Germany who fit the legal concept of “Jew” and another 300,000 one-half or one-quarter Jews who fell into the “Jewish Mischling ” category 67 . The Nuremberg Laws protected the blood and honour of Germans by making it illegal for them to marry or consort with the newly defined Jew 68 . So there could be no doubt as to their purpose in the Nazi scheme, these marriage laws were also included in the collection of German Health Laws. If race mixing was the basic Jewish problem ¯ and this had been the Nazi message from the outset ¯ the legal basis for a biological solution had been laid. Rigorous enforcement would have led eventually to the extinction of the Jewish Mischling . The official commentary to the Nuremberg Laws, published in 1936, stated clearly: The aim of a legal solution to the Mischling question must be disappearance of the Mischling race' 69 . Within two generations the Nazis could have reasonably expected the Mischling to disappear and with him would have disappeared the danger of the disguised Jew, the one Nazis considered the most dangerous of all. The Nuremberg Laws brought Nazi Jewish policy to the end of its legal phase. Thirteen supplementary decrees during the next year carried its provisions into other areas of German-Jewish contact 70 , but by that time legislation was no longer foremost in the minds of most Nazis. What happened after 1935 took place not so much because of the laws, as it did in spite of them 71 . Because the Nuremberg Laws required proof of ancestry, their administration affected Aryans as well as Jews. Anyone applying for a position in the government or an agency of the party was required to submit proof of his non-Jewish origins. The birth certificates of parents and grandparents could well become a family's most valuable documents. A young man who aspired to membership in Himmler's racially elite SS, for example, had to offer evidence of Aryan ancestry back 1750, before the European process of Jewish emancipation had begun 72 . Few families had such records at their disposal, or the resources necessary to hunt them down. The need for such a service led to the creation of a new profession, which specialised in the search of church and state records for birth and baptismal certificates. These “genealogical researches” or Sippenforscher assisted their clients in finding the necessary documents. After 1935 the Sippenforscher did a thriving business. A very incomplete picture of Nazi Jewish policy would emerge from a study of discriminatory legislation alone. Laws, even of the Nazi variety, never quite fit the Nazi style, or for that matter their purposes. Had they restricted themselves to enforcement on the anti-Jewish laws the continued existence of a separate if second-class Jewish community would have been assured. Hitler became increasingly aware that laws could have precisely such an effect. He came to recognise that politically it was unwise to tie his own prestige to a law, which might someday serve to restrict his own freedom to act. A particular law could always be rescinded, of course, but not without a certain loss of face. Only the higher, natural law which Hitler himself was able to divine had unquestioned legitimacy. In its lesser forms the law existed only to protect the individual against the state, and he could explain this mental distortion only by influence of the Jews' 73 . Fully as important as the anti-Jewish legislation, which culminated in the Nuremberg Laws was the light, which their creation sheds upon the inner workings of Nazi officialdom. Hitler's hand appeared occasionally at crucial moments, but it was usually a vacillating and indecisive one. He did not delegate responsibility for Jewish policy, nor did he keep a close check on it. At Munich on September 29, 1935, thoughts of war pushed the Jewish problem aside. The Fuehrerprinzip , which should obviously have been applied, was not invoked. A few weeks earlier at the Nuremberg Rally the sight of thousands of wildly cheering National Socialists had played as great a role in his decision to call for new laws as did the apparent need for a solution to the Jewish problem. Hitler was himself prey to the emotions which Goebbels had so carefully planned to generate in his followers. He was consistent only in his continued demand on the need for a solutioto the Jewish question ¯ in private if not in public ¯ and in his efforts to suppress nonofficial solutions if they endangered any of his other policies. The problems associated with legislation, especially with the Nuremberg Laws, also made clear that the state bureaucracy was not completely responsive to Nazi wishes. Loesener's resistance which took the form of trying to draft a milder form of legislation managed to slow down the bureaucratic process, even to delay implementation of the laws for several months. The local Nazi leader from Bonn who had complained to Streicher had another reason to be displeased. Not only were there too many laws ¯ which had the effect of “protecting” Jews ¯ but the occasional “good laws” were too slow in coming. The implications of this were also interested in the Jewish Problem. References: 50 See Gerhard Schoenberner, ed., Der Gelbe Stern, Die Judenverfolgung in Europa, 1933 bis 1945 (Hamburg, 1960), p. 21. 51 Deutsches Arzteblatt , November 11, 1933. 52 Faulk Ruttke, ”Erb- und Rassenpflege in Gesetzgebung und Rechtssprechung des Dritten Reiches”. Deutsches Recht , January 25, 1933, pp. 25-27. 53 Juristische Wochenschrift , June 29, 1935. 54 Dokumente Frankfurter Juden , pp. 217-218. 55 Joseph Wulf, Die Nuerenberger Gesetze (Berlin, 1960), pp. 8-9. 56 William L. Shirer, Berlin Diary (New York, 1961), p. 181. 57 The following account of how the Nuremberg Laws came into being is told by an official of the Reich's Interior Ministry who was commissioned to prepare drafts of the laws. The official, Bernhard Loesener, has recorded his story in the previously cited “Als Rassereferent”, pp. 264-313. If it were not for the existence of reliable evidence and testimony corroborating Loesener's story, it would appear highly questionable. At the Eichmann trial in Jerusalem, Heinrich Grueber, a Protestant clergyman in Berlin during the Hitler years, who risked his life to save Jews from Nazi persecutions, listed Loesener as his “contact man” in the Interior Ministry. See “Witness of Righteousness: The Work and Faith of Dean Grueber”. Wiener Library Bulletin 16 (1962): 9. 58 RGB 1, I, 1935, p. 1146. 59 The Reichsvertretung was founded in the fall of 1933 by the Zionist Federation and Central Union of German Jews to represent the collective interests of all Jewish organisations in Germany. Rabbi Leo Baeck was chairman of the Governing Board and Otto Hirsch was Executive Director. 60 Central Verein Zeitung, September 26, 1935. 61 Hitler's interview is reprinted in Norman H. Baynes, ed., The Speeches of Adolph Hitler, vol. 1 (London, 1942), p. 735. 62 Schumacher Archiv, Folder 240 I, BDC. 63 Collection: Bezirksamter, Folder 35, BDC. 64 This account of how the supplementary decrees came into being is based on Loesener, “Als Rassereferent”. 65 RGB1, I, 1935, p. 1333. 66 Mischling does not bear adequate translation into English. In this context it means a person who was legneither Jew nor Aryan, but someone whose blood was a mixture from both “races”. 67 Schumacher Archiv, Folder 240 I, BDC. 68 For an exact listing of who could marry whom, see Dr. Rissom, “Mischehen im Lichte der neuen Gesetzgebung”, Zeitschrift der Akademie fur Deutsches Recht (January, 1936):8-10. 69 Wilhelm Stuckart and Hans Globke, Kommentare zur Rassengesetzgebung; Reichsbuergergesetz, Blutschutzgesetz, Eheschutzgesetz (Munich, 1936), p. 17. 70 See Marianne Sigg, Das Rassestrafrecht in Deutschland in den Jahren 1933-1945 unter besonderer Berucksichtigung des Blutschutzgesetzes (Aarau, Switzerland, 1951). 71 Hans Buchheim, et al., Anatomie des SS-Staares, vol. 1 (Olten und Freiburg im Breisgau, 1965), pp. 19-20. 72 “SS-Bewerber”, in Gutachten des Instituts fuer Zeitgeschichte (Munich, 1958), p. 349. 73 Trevor-Roper, ed., Hitler's Secret Conversations, p. 358. Back to the top