"Non-Germans" Under the Third Reich (10 page)

2. The Principle of the Primacy of Party over State (“Politicized Administration”)
¹

Section 1 of the Law to Secure the Unity of Party and State, dated December 1, 1933,
²
read: “After the victory of the National Socialist revolution, the National Socialist German Workers’ Party has become the upholder of German state thinking and is indissolubly linked to the state.” This consolidated the rule of the NSDAP and its Führer,
³
which had been outfitted by Hitler himself and his adherents
⁴
with a claim to infallibility borrowed directly from the Catholic church (“all-knowing and infallible institution”),
⁵
not only in the state sector but also in the entire domain of politics and philosophy (weltanschauung) as well.
⁶

In practical terms, the totalitarian claims of the NSDAP, whose tight structure made it appear to be the perfect embodiment of the absolute Führer principle, climaxed in demands that the state apparatus be reduced to a mere implementing agency under the supervision of the NSDAP, which would issue the definitive orders; that there should be the closest possible integration, both in personnel and in organizational structure, between Party and state apparatus; that the Party should appoint the top leadership personnel (participation in state personnel policy) and oversee state affairs in their entirety (exertion of extralegislative influence by means of the press, propaganda, control over administrative departments or individuals, etc.).

a. The Integration of Party and State Personnel

The close linkage between Party and state, quite imprecisely called the “unity of Party and state” in the National Socialist idiom, was put into practice in the most varied manner. The integration of personnel within the state apparatus was guaranteed after consolidation of offices made the political leadership largely identical with the administrative leadership.
⁷
Hitler himself, in his position as Führer of the NSDAP and Führer and Reich chancellor of the German government, best personified the principle of the identity of Party and state; this was the model for the
merging
—however imperfectly realized—of high offices of state with Party positions (and positions in the NSDAP-dominated corporative organizations)
⁸
from the
Länder/Reichsgau
level
⁹
on down to the intended, and in some cases realized, merging of the offices of
Landrat
and
Kreisleiter
.
¹⁰

The principle of linked offices, coupled with the corresponding authority on the part of the Party leaders to issue directives to state agencies, meant, first of all, increased potential for the accomplishment of the revolutionary aims of National Socialism, since this could be done through a whole range of institutions, all of which shared a single leadership. But in the eyes of the Nazi leaders, the principle of multiple offices had still other purposes. If the hidebound administration proved unfit to carry through with radical political aims, such as the suppression of domestic opponents and policies of discrimination and annihilation in the occupied territories, the jurisdictional boundaries between state and Party authorities could, as later developments showed, be altered at any time by order of the Führer, and reliable “Old Fighters”
¹¹
and Party formations could be brought in for such purposes. Although answerable only to Hitler, these latter were also empowered, by virtue of the institution of multiple offices, to enlist the aid of the respective state authorities.

An example of this is Hitler’s declaration at the 1935 Party congress of the NSDAP that under certain conditions he would leave the solution of the Jewish question exclusively in the hands of the Party authorities. The struggle against the inner enemies of the nation, he said, should “never [be frustrated] by bureaucratic procedure”; “what the state because of its very nature is incapable of solving, will be solved by the Movement.”
¹²
Explaining the plans of the state leadership for the Eastern Territories in a speech to the presiding judges of the high courts and chief public prosecutors on September 29, 1942, Reich Minister of Justice Thierack remarked that the East was Germany’s colonial soil. This, he said, implied that “we must annihilate the peoples living there—I say this to you in all brutality—or at the least subdue them.” In these Eastern Territories, he said, no courts should be established. Courts, he said, could “not destroy the peoples there”; that could only be done by “the Wehrmacht and the police.”

b. Organizational Integration of Party and State

The primacy of the NSDAP over the state found organizational expression in multiple enmeshments within the state apparatus. As the official state party,
¹³
the NSDAP grew, despite its status as a public corporation under state legal supervision,
¹⁴
into an uncontrollable system of multiple offices
¹⁵
modeled on state agencies, with their own budgetary allowances, jurisdictions, and sundry privileges, chief among which were the entitlement to the same protection as state institutions and the right to legal and official assistance
¹⁶
from the state. The director of the Party headquarters (the deputy of the Führer, later director of the Party Chancellery) was a member of the Reich government;
¹⁷
he was granted (de facto from the very beginning by Hitler, and after 1940 by formal act as well) a decisive voice in all legislative questions (i.e., he held the position of a participating Reich minister), in the sense that all legislative proposals were subject to his approval.
¹⁸
This pseudolegal situation alone indicates beyond doubt that the “duality”
¹⁹
of Party and state, a concept derived from Hitler himself and celebrated as a “revolutionary innovation,” was by no means to be understood as a
coexistence
of Party and state. Rather, the NSDAP leadership had always made it plain that the state sector was fundamentally subordinate to the Party, a principle that was unmistakably set forth
²⁰
in the corresponding passages of the Civil Service Code and that was tacitly or overtly accepted
²¹
by the judiciary (German Supreme Court: “the
Volk,
not the state, is the decisive element”) as well as by the administration.
²²

But this also changed the purpose and function of the state itself. For Hitler and the National Socialist leadership, dynamism and “movement,” as exemplified in the Party, were everything; the state, as an expression of tradition and constancy, nothing; occasional statements emphasizing the importance of state continuity and the strict separation of Party and state
²³
were merely tactical in nature. According to the ideas of the Nazi leadership, the state was not an end in itself, nor the origin of human culture, but merely a means to the evolution or development of a “race capable of culture”;
²⁴
since this development was possible only with the aid of the Movement, the latter was avowed to be the antagonist of the state (“polarity between political movement and state bureaucracy”),
²⁵
one whose task it was, in a process of constant speeding up and slowing down of the revolutionary forces opposing entrenched state power,
²⁶
to advance the “mission of the German people,” following Hitler’s ideas. The functions that the state was to have
in the future
were, however, never clearly defined. Hitler himself made vacillating and mutually contradictory statements that depended entirely on the political occasion that gave rise to them.
²⁷
As nearly as can be determined from his vague remarks, the Party “already bore within itself the coming state” and, by its organization, would make available “to the state … in days to come … the already perfected body of its own state.”
²⁸
The Party thus became the primary element of “
völkisch
life” and the model for the structure of the future state; in Nazi ideology, the state as presently constituted was merely an institution to be utilized “until revoked.”
²⁹

The image of this Party-state dualism as two opposing forces was also adopted by post-1945 researchers, for whom it was associated with the further question, not under discussion here, of the nature of and relationship between regular and emergency powers.
³⁰

Be it noted in this regard merely that the term
dualism
is imprecise, because, as already established, the very intentions of the Nazi leadership made dualism between Party and state impossible and also because it was simply not implemented in practice. Important state agencies such as the SS, the police, and the judicial apparatus were closely intertwined with the Party in terms of personnel and to some extent structurally as well, a fact that Fraenkel rightly notes (in
The Dual State
). The result was an extraordinarily close connection between regular (state) power and the emergency power of the Party (despotism). The organs of the state became instruments of emergency power, whereas emergency power was integrated into the structure of the state (for example, the Nuremberg Laws). The emergency lost its exceptional character, becoming itself the rule and an integral part of the system.

It would be better to speak of graft (
Verklammerung
) in Party and state, something that is still best described by the image of the dual state put forward by Fraenkel. This personal and political enmeshment of Party and state was recognized in the Nazi period as well. E. R. Huber rightly commented that the National Socialist polity, the Third Reich, possessed an “intertwined, but double, structure … [consisting of] Party organization and state apparatus.”
³¹
Both organizations, which were in fact a hopelessly confused tangle of parallel governmental, semiofficial, and Party bureaucracies—whose very confusion and intricacy had the effect of stabilizing the system and only served to strengthen the position of the supreme Führer
³²
—exercised sovereign functions in practice.
³³
The twofold structural organization was preserved merely for reasons of tradition and political expediency.
³⁴

c. The Influence of the NSDAP on Government Personnel Policy

The destructive and corrosive influence of the principle of “politicized administration” made itself felt most of all in the area of personnel policy, which was far more vulnerable to the demands of the monopoly party than the organizational structure. The effect was particularly strong at the grassroots level (for instance in the area of municipal government).
³⁵
From the outset, the Nazi leadership recognized the critical significance of personnel policy, which they were right in viewing as far more important than organizational reforms. After it became clear that there were not enough Party comrades to fill all leadership positions (from ministerial councillor on up),
³⁶
the NSDAP obtained the participatory rights discussed below, which put them in a key position regarding overall personnel management.

Thus the appointment and promotion of any and all civil servants was contingent on Party approval. Legally, this mandate was backed by the Civil Service law requirement that made political allegiance an obligation and by the concept of personal “fitness” as expressed in section 26, paragraph 1, subparagraph 2, of the German Civil Service Code of 1937: the applicant was obliged to “guarantee” his willingness at any time “to stand up for the National Socialist state without reserve”
³⁷
—a duty that the Civil Service took seriously and affirmed “at least to a considerable degree” (as was pointed out by the German Federal Constitutional Court).
³⁸
The “least evidence” of a “non–National Socialist attitude” constituted malfeasance in office, even if the official did nothing more than to make such an attitude known “to any third party.”
³⁹
To be sure, determining personal fitness was still the responsibility of the appointing agency; however, there was now an additional necessary political certificate, the preparation of which was entrusted not to the agency itself, nor to the coordinated (
gleichgeschaltet
) civil servants’ professional organization (the Reich Association of Civil Servants [
Reichsbund der Beamten
]),
⁴⁰
but exclusively to the offices of the NSDAP.
⁴¹
The latter—bolstered by the right to a “hearing” to determine personal fitness in each case of hiring or promotion
⁴²
—had sole responsibility for issuing the conclusive evaluation of the applicant.
⁴³
According to regulations in effect, if the hiring agency did not want to be bound by the political certificate, the decision fell to the head office. In actual fact, however, neither a Civil Service appointment nor a promotion could be implemented against the vote of the monopoly party, because of the developments sketched below. The Party’s rights to a hearing were significantly expanded by the fact that the NSDAP, like any totalitarian party, was not inclined to limit itself to its legally sanctioned powers. Originally, in fact, its rights pertaining to the appointment and promotion of civil servants were cloaked in the form of a negative veto power, or a statement that there were no objections to the fitness of the applicant (a “clean bill of health” [
Unbedenklichkeitsbescheinigung,
i.e., a certificate of nonobjection]).
⁴⁴
Around 1937 the NSDAP transformed this veto power into a positive right of approval, with the justification that the need to confirm Civil Service appointments necessitated a positive evaluation (political certification).
⁴⁵