In Germany in the 1930s, the state passed law after law to isolate, disenfranchise, and break down Jewish Germans. It is shocking how easily the German parliamentary government chipped away at Jewish citizenship, attacking the livelihoods and cultural contributions of small groups of Jews, before finally passing the series of laws known as the Nuremberg Laws, which stripped Jews of their citizenship, rights, and, in the end, their freedom.
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Averill: In Hulu’s adaptation of The Handmaid’s Tale, it starts with the laying off of all women from their jobs. Then their bank accounts are frozen. And ultimately they are stripped of citizenship, rights, and freedom, categorized by their ability to reproduce or not, and funneled into forced servitude of one horrible kind or another. Women are the targets of Margaret Atwood’s dystopian America, of the state-sponsored domination and violence. And though everyone I know who watched it felt sick with how easily that could become our reality, it’s still a fictional world. It’s a figment of Atwood’s imagination. But, of course, that level of state-sponsored brutality and discrimination has already happened, has already been someone’s reality. In Germany in the 1930s, the state passed law after law to isolate, disenfranchise, and break down Jewish Germans. It is shocking how easily the German parliamentary government chipped away at Jewish citizenship, attacking the livelihoods and cultural contributions of small groups of Jews, before finally passing the series of laws known as the Nuremberg Laws, which stripped Jews of their citizenship, rights, and, in the end, their freedom.
I’m Averill Earls
And I’m Marissa Rhodes
And we’re YOUR historians for this episode of Dig
Marissa: This episode is part of our “Law” series. We apologize in advance – when we record these episodes, we have a peanut gallery – today Sarah and Elizabeth – are in the room, and sometimes they can’t contain their giggles, and it seems those giggles are usually at the most inopportune moments. Whatever happens today, we hope you enjoy the episode, and if you haven’t already, subscribe where ever you get your podcasts.
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Marissa: The Nuremberg Laws were a series of laws passed at a Nazi Party rally in the city of Nuremberg (in Bavaria) in 1935. The Law for the Protection of German Blood & German Honor, the Law for the Protection of Hereditary Health, and the Reich Citizenship Law are, collectively, the “Nuremberg Laws” that set the legal precedence for the expunging of Jewish people from German, and later European, society.
Averill: “Nazi” is a derogatory abbreviation of the National Socialist German Workers’ Party, or NSDAP, which was a political party that fell to the right of conservative German politics in the 1920s. Members of the NSDAP did not call themselves “Nazis;” rather, this was intentionally used by critics and foreign powers because it had a variety of annoying connotations, including an association with backwards Bavarian peasants. As their name suggests, the NSDAP initially started out as a supposed champion of the working German man, with anti-bourgeois, anti-capitalist, and anti-big business goals. But by the 1930s they realized they needed big business and capitalism to advance their political goals, and so they were leaning into their other core values: German nationalism, anti-Marxism, and racism. They held a very tiny percentage of seats throughout the 1920s. In 1924, they won 3% of the seats in Germany’s parliament. In 1928 they won only 2.6%. When the US stock market crash triggered a world-wide depression, however, Germany was hit particularly hard. Millions were forced into unemployment, and the Weimar government–Germany’s first democratic government, established after the fall of the German Empire at the end of World War 1–could not meet the demands from the social welfare system.
Marissa: Some Germans believed that the parliamentary system itself was to blame for the crisis. Some believed that the unfair burden of blame for World War 1, which the Weimar government had to accept, was the cause. Both sentiments created resentment, fear, and a belief that worst was yet to come. Adolf Hitler–leader of the NSDAP since 1921–and his party capitalized on these conditions to win more and more seats in the parliament. They promised to pull Germany out of the Depression, reclaim German cultural heritage, including the Empire that was once theirs, crush the perceived Communist threat, and make Germany a world power once again. Hitler and other NSDAP leaders were astute politicians; they tailored every speech to their audience. When addressing big business, they downplayed antisemitism in favor of their anti-Communist and pro-Empire values. They made promises to every voting block, from the farmers who needed agricultural protectionism to the soldiers who wanted to see the military rebuilt to its former glory.
Averill: When the German Chancellor called for a new election in September 1930, he miscalculated his coalition’s popularity. The Depression–and the Nazi electoral propaganda–turned the tide in the Nazi’s favor. They won a staggering 18.3% of the vote, and became the second largest party in the Reichstag. The sitting President (essentially the Executive branch of the German government), Paul von Hindenberg, appointed a new Chancellor when the previous was unable to form a new coalition government. The new Chancellor, Franz von Papen, called for another election in July 1932, which increased Nazi seats to 37.3%, making them the largest party in the Reichstag. But as the Nazis gained seats, so too did the Communists. In the July 1932 election, the Communists took 14.3% of the votes. In a November election, the Nazis lost some ground, and the Communists gained some–jumping up to 16.9%. It was believed that if the Communists won too many seats, they would end parliamentary democracy in Germany entirely. The Nazi leadership had convinced President Hindenberg that they would preserve democracy and crush Communism in Germany–and so on January 30, 1933, Hindenberg appointed Adolf Hitler, leader of the NSDAP, as Chancellor. This deal was made in a back room, as a group of conservative politicians believed that with the popular Hitler in power they could begin dismantling the parliamentary system and turn Germany back to a conservative authoritarian regime. They were wrong, of course. Hitler and the Nazis outmaneuvered them, and quickly turned Germany into a Nazi state.
Marissa: At the end of February 1933, the Nazi leaders falsely claimed that a fire at the Reichstag building was an attempted Communist coup; this allowed Hitler to decree a state of emergency, a suspension of parliamentary activity, and the granting of emergency powers to the Chancellor. Within a few months, the Nazis controlled cultural institutions, education, the economy, and lawmaking. They also received support from the majority of Protestant and Catholic clergymen in Germany. In this early period, the Nazi leadership quickly passed a handful of laws that would begin the systematic persecution of German Jews.
Averill: Prior to the passage of the collective Nuremberg Laws, the National Socialists pushed through various measures targeting and isolating German Jews. State-sponsored harassment and violence began early in 1933, when the National Socialists were first successful in controlling the German parliament, the Reichstag. Nazi leaders organized forced boycotts of Jewish businesses, encouraged mob violence against Jews, and ultimately, in 1938, sent Nazi Youths and agents into Jewish communities to destroy Jewish businesses and attack Jewish Germans in the Night of Broken Glass (Kristallnacht). Anti-Semitic laws were passed as early as March 1933. Laws targeting the Jewish middle class were first.
Marissa: In April 1933 the “Law for the Re-establishment of a Professional Civil Service” went into effect, allowing for the immediate dismissal of civil servants on political grounds and for the compulsory retirement of civil servants “not of Aryan descent.” A similar law affected Jewish lawyers. Though these early legal statutes were mitigated slightly by the other political players, like President Hindenberg, not yet supplanted by Adolf Hitler, they represent a steady march toward the Nazi goal of a racial state. Nazi leadership sought to remove Jews from all elements of German professional life. There were laws to prevent Jews from attending university — the “Law against the Overcrowding of German Schools and Universities,” — and to prevent Jewish doctors, dentists, patent lawyers, and accountants from practicing.
Averill: The new Nazi state also implemented measures to eradicate Jews from cultural and intellectual life. Concerts and theater performances with Jewish musicians and actors were disrupted, and Jewish artists were dismissed from their jobs and commissions. As Hitler explained, “‘the immediate eradication of the excess of Jewish intellectuals from the cultural and intellectual life of Germany is necessary if justice is to be done to Germany’s natural right to an intellectual leadership appropriate to its own kind.”
Marissa: Jews from Eastern Europe who’d been fleeing the Soviet Union since the end of World War 1 and settling in Germany were the targets of the first citizenship laws, passed in July 1933. These laws set a legal precedent for depriving Jews more broadly of German citizenship, an important development for the later Nuremberg Laws. In the immediate application, though, they deprived only the “newcomers,” denying only the “Ostjuden” access to German citizenship.
Averill: In a speech from September 1933, Hitler lamented the government’s inability to take immediate and total action against the Jews of Germany.
He, the Chancellor, would have preferred to move gradually towards stepping up the rigour with which the Jews in Germany were treated, by creating first of all a nationality law and using this as the basis for ever harsher approaches to the Jews. However, the boycott provoked by the Jews had necessitated immediate counter-measures of the severest kind. People abroad were complaining above all about the legalized treatment of the Jews as second-class citizens.
With Hindenburg still in the role of President, and the potential for political opposition to overt and mass anti-Semitic legislation, Hitler and the Nazis had to take a circumvential route to targeting Jews in Germany. The laws they passed to attack the Jewish middle class were only partially successful. For example, Hindenburg issued a limitation on the laws barring civil servants and lawyers; any who’d been practicing before the start of World War 1, or who fought in World War 1, or whose fathers’ had fought in World War 1, were exempt. So some 60% of Jewish civil servants were able to continue to work. But these laws supported the boots-on-the-ground war against Jews that the Nazi SA paramilitary was waging against lower-middle class Jewish businesses, and which they had been waging since the 1920s, when the party was founded. Perhaps more importantly, these early 1933 laws set up a ‘scientific’ legal precedence for discrimination against German Jews.
Marissa: Nazi ideology was a mixture of traditional European anti-Semitism and modern eugenics. One of the more significant elements of these early 1933 laws is the way that it defined Jewishness. Per these laws, Judaism was not a religious classification. In line with modern eugenic and racist pontifications on Judaism, like that of Henry Ford or Adolf Hitler himself, within these laws Jewishness was classified as a nationality or race, something that could be passed from parent to child, a hereditary condition. Per these 1933 laws, then, even if someone was not practicing Judaism, they were Jewish by birth. Even someone baptised Roman Catholic, raised and catechised and praising Jesus–if they had a parent or a grandparent who was Jewish, per this legal classification, they were Jewish.
Averill: The Nuremberg Laws would go further in these legal definitions, identifying, for example, the “Mischling” or half-Jew as anyone with two Jewish grandparents. Any Mischling married to another Jew or who lived in a “Jewish community” was subject to all the restrictions (and loss of citizenship) of a “full Jew,” or anyone with three or more Jewish grandparents. So while the earlier 1933 laws were not as broadly applicable, they delivered legal precedent to classify German Jews as racially different from other Germans. Insufficient challenges to the 1933 laws–perhaps because workarounds from sources like Hindenburg’s exemptions left enough protected that they didn’t challenge the new laws–left those layers of racial discrimination in place.
Marissa: Attacks on Jews in specific professions weren’t the only early laws targeting Jews, however. In April 1933 the Nazis passed a law forbidding the slaughter of livestock without first stunning the animals by an electric shock. This additional step violated existing Jewish Kosher rules, and proved quite an obstacle for practicing Jews who kept Kosher. Some liberal rabbis responded by incorporating the electric shock into acceptable Kosher slaughter standards; others railed against it, arguing that if they started making allowances now, the standards would eventually cease to exist.
Averill: One letter to the editor in a prominent Jewish newspaper warned the Jewish community to avoid the “new Kosher” lie.
Out of the contemporary Jewish situation, which is at once tragic as well as comic, a new Jewish word was born: “New-kosher”. But what does it actually mean? Neither the Torah nor the Talmud… mention it. …
But a Jewish restaurant near a resort in the Black Forest advertised their cuisine as follows: “The meat fare is new-kosher.” Every day new reports are coming in about “new-kosher” changes in public businesses, Jewish institutions, and private houses in rural areas.
For our readers who are unfamiliar with the meaning of “new-kosher” and will most likely not find a description in any Jewish encyclopedia, the following definition is offered: “New-kosher” refers to meat of animals which were stunned and then killed, with or without a shechita6 (as it is irrelevant at this point). In other words, it is meat that is not “new-kosher”, but in both old and new terms strictly terefah, and no rabbinic power can alter it from being nevelah u’trefah.7 It seems almost cynical when Jewish restaurants use the non-existent term “new-kosher” as advertising to entice ritually observant people….
Those who are letting their consciousness be lulled into believing these words are deceiving themselves, and whoever is profiting by spreading these new words is … destined to pile guilt upon his soul, which according to the doctrine of “Father Proverbs” is almost unredeemable.
Marissa: As imported Kosher meat became increasingly more expensive, many–particularly lower-class Jews–had no choice but to accept the “new Kosher,” and risk the admonishment of the community. But like the only partially effective attacks on the professions, these little digs at the different segments of the Jewish population served to divide the community. Without a united front, Jews from all walks of life and ranges of faith were all the more susceptible to the broad-sweeping laws that were on the horizon.
Averill: There was a period of relative quiet, legislatively speaking, from late 1933 through most of 1934. The army swore allegiance to Hitler in June 1934, and then President Paul von Hindenburg died in August. At that juncture, Hitler dissolved the distinctions between the various leadership positions of the German government, making himself both the head of the legislative body–as Chancellor–and head of the executive branch. He was, effectively, uncheckable, as the Fuhrer (head of the Nazi Party), Chancellor, and President of Germany. He had the last word on all domestic and foreign policy initiatives, an extra-legal line of authority, known as the “Führer Executive” (Führerexekutiv) or the “Führer principle” (Führerprinzip).
Marissa: Nazi foreign policy hinged on a belief that Germans were the superior European race, destined to conquer eastern Europe and carve out additional living space for the “Aryan” race. Domestic policy focused on the elimination of “racially inferior” peoples, particularly Jews, but also people with disabilities, the Roma and Scintii gypsies, and political enemies and dissidents. Excising these undesirables was of utmost importance to national security. To that end the German government passed three key laws in September 1935 at a Party Rally in Nuremberg, Bavaria. The Reich Citizenship Law stripped Jews of their German citizenship and introduced a new distinction between “Reich citizens ” and “nationals.” Certificates of Reich citizenship were in fact never introduced and all Germans other than Jews were, until 1945, provisionally classed as Reich citizens. According to Article 2 of the Reich Citizenship Law, “A citizen of the Reich is that subject only who is of German or kindred blood and who, through his conduct, shows that he is both desirous and fit to serve the German people and Reich faithfully.”
Averill: The eugenic ideology of the Third Reich was evidenced most prominently in the Law for the Protection of Hereditary Health and the Blood and Honor Law. The Hereditary Health Law specifically outlined mental and physical disabilities that were to be targeted for removal from the Volk gene pool. This law allowed the government to tag “undesirables” for forced sterilization. Anyone who suffered from an “inheritable disease” could be surgically sterilized if a doctor deems it necessary to prevent “descendants” from inheriting mental or physical “defects.”
Marissa: The list of undesirable inheritable diseases:
1. congenital feeble-mindedness
4. congenital epilepsy
5. inheritable St. Vitus dance (Huntington’s Chorea)
6. hereditary blindness
7. hereditary deafness
8. serious inheritable malformations
In a separate bullet in the law, those subject to forced sterilization also included “anyone suffering from chronic alcoholism.”
Averill: People could request to be sterilized–or their parent or guardian could request it–and receive that surgery for free. Doctors, as well as officials in charge of hospitals, sanitariums, and prisons could also recommend that an individual be forcibly sterilized at any time. This law was used extensively on patients in hospitals and asylums, on those deemed mentally or physically “unfit” to potentially reproduce. Men, women, and children were taken into unnecessary and nonconsensual surgeries for tube tying and vasectomies. These operations were, of course, performed by many doctors who believed as much in racial hierarchies and eugenic principles as the highest Nazi official. Whenever I talk about or learn about or teach about the Holocaust, I am devastated over and over again by what people can justify doing to other people. But then again, forced sterilization was not limited to Germany in the 1930s. There were forced sterilization laws in a number of US states, the Netherlands, and elsewhere in the 1930s; the Czechs practiced nonconsensual sterilization on over 90,000 women from 1970 to 1990. So while I am continually horrified when studying the Holocaust, it’s just as horrifying to remember that so much of what happens in the Nazi period that we deem unconscionable has happened – or continues to happen – in so many other places.
Marissa: (Feel free to comment as well, Marissa – I got really angry/sad writing this because I saw that tweet about some teacher whose students carry their documentation around with them in case they get stopped by ICE, and their parents have Plan Bs for who will care for their children if they get deported, and how much the way Trump’s administration is treating DACA and DREAM immigrants is like the treatment of Jews in Nazi Germany… I can’t even. Or just continue with the rest of this script.)
The Law for the Protection of German Blood and German Honor (September 15, 1935) covered just about everything else in the quest to create distinct legal categories for Germans and Jews–and particularly for asserting that Jews could not be German. Much of this law was concerned with controlling sexual interactions between Jews and non-Jews. As the law preface noted, “Entirely convinced that the purity of German blood is essential to the further existence of the German people, and inspired by the uncompromising determination to safeguard the future of the German nation, the Reichstag has unanimously resolved upon the following law, which is promulgated herewith.” Marriages between “Jews and citizens of German or kindred blood are forbidden. Marriages concluded in defiance of this law are void, even if, for the purpose of evading this law, they were concluded abroad.” Despite the obvious intention of this law, which would dissolve existing marriages between Jews and non-Jewish Germans, that potential was almost never enforced. Likely the Nazi officials believed that to enforce the dissolution of existing marriages would create too much backlash. The law, then, applied primarily to individuals trying to get married thereafter. Additionally, Section 2 of the Blood and Honor law stated that “Sexual relations outside marriage between Jews and nationals of German or kindred blood are forbidden.” This allowed for the prosecution and public humiliation of young people who were caught having sex across the new racial boundaries. There are some horrific film clips at the USHMM of young German women dragged through the streets of their villages, stripped naked and then shaved by a crowd of German men, because these young women had sex with Jewish men.
Averill: It forbade Jews from displaying the Reich or national flag or the national colors, but allowed them to display “Jewish colors”–whatever the f**k that means. Per this law, Jews were markedly denied their German heritage. It demarcated “real” Germans from supposed interlopers. For those foolish enough to wave a Zionist flag outside their house, as much as the Nazi government would have liked yet another way to identify Jewish people for persecution. The law also stated that Jews would “not be permitted to employ female citizens of German or kindred blood as domestic servants.” While very hodge-podge in the issues it takes on – marriage, sex, flag waving, and the subservience of Germans to Jews – he primary function of this law was to create legal divisions between “Jews” and “Germans.” And it was, for the most part, very useful towards that end.
Marissa: These laws were discussed and passed into law at a Nazi Party Rally at the end of the summer of 1935. They went into effect in September 1935. By October of that year, the Law for the Protection of the Hereditary Health of the German People required that people obtain permission from public health authorities before they marry. How widely this was enforced depended on the region of Germany; not all cities and towns had the medical infrastructure needed to approve every marriage application. Still, the Nazis succeeded in creating implementable and seemingly legal barriers for discriminating against Jews.
Averill: And the buck did not stop there, either. In November of 1935 the Nuremberg Laws were extended to other groups in Germany. Under that insidious guise of scientific eugencism, the Third Reich implemented their racial hygiene initiatives with swift and devastating efficacy. As we’ve already noted, the Nuremberg Laws allowed doctors in hospitals to sterilize whomever they saw fit – or rather, unfit. According to one estimate, between 1934 and 1945, between 300,000 and 400,000 were forcibly sterilized.
Marissa: The Nuremberg Laws collectively invited extensive commentary from lawyers — but almost exclusively lawyers who supported the regime. It was dangerous for Jewish lawyers to call attention to themselves; per the 1933 laws they could lose their right to practice if they openly criticized the regime’s growing legal persecution of other Jews. Nazi and like-minded lawyers took advantage of the Nuremberg laws to expand its anti-Semitic principles. It served as the base for a whole host of ways to deny Jews citizenship, German heritage, and their humanity. The anti-Semitic fervor that captured Nazi lawyers was surpassed only by the judges. When trying cases under the new laws, some judges saw fit to create wiggle room for even more oppressive implementation of the law. When Germany’s chief prosecutor suggested that the anti-miscegenation law be expanded beyond sexual intercourse to any and all sexual contact, the courts obliged. Jewish lawyers, by and large, however, remained silent on the Nuremberg Laws. In most cases, they were trying to find ways to prove that their clients were not guilty of whatever trumped-up charge had been levied against them. They didn’t have the opportunity to make powerful political defenses to challenge the laws. They had to do their best to get their Jewish clients a fair trial and out of danger. While there was some conversation and debate within the Jewish community about the laws — as one would imagine there had to have been — there was almost no formal responses to the Nuremberg Laws.
Averill: So when Max Hellman took on Hitler, he was a lone wolf. Even the lawyers for the Central Union of German Citizens of Jewish Faith, the main German Jewish defense organization, didn’t call into question the legality of the Nuremberg Laws. And Hellman didn’t expect to win when he did call into question the legality of the laws. But he did expect to make a mockery of the Fuhrer and his penultimate power in the Third Reich.
Marissa: Some lawyers, like Berthold Haase, simply gave up. On the day the Nuremberg Laws were published, Haase gave up his practice of law in Berlin and had his name taken off the register of attorneys. In his own words, he’d spent his life and career “devoted earnestly and joyfully to advancing justice and invested all my strength to upholding and strengthening German culture.” The Nuremberg Laws denied him the right to celebrate his Germanness. So he emigrated. When the Nazis took power in 1933 and passed the laws specifically targeting Jewish lawyers and other middle-class professions, it had been a hard road simply to stay in the black. More Jewish lawyers in Germany remarked far more on the 1933 laws — which had immediate and specific ramifications for so many of their colleagues — than on the 1935 Nuremberg Laws. One third of lawyers were forced out of the German Bar, and the remaining two-thirds found keeping and getting new clients increasingly more difficult. All faced financial hardship.
Averill: Max Hellman, though, made a remarkable stand among Jewish lawyers when he called bullshit. Hellman was born in 1884, and admitted to the German bar in 1914. He served in World War I, which ultimately saved his practice during the first culling of Jewish lawyers in 1933. He owned his own home, made a modest but comfortable living in an independent practice, and married a non-Jewish woman in 1924. His wife died in the spring of 1936, leaving him a widowed Christian convert living alone in Leipzig. He employed a housekeeper to look after things.
Marissa: Hellman was kind of a sad guy. In addition to converting to Christianity just before marrying his wife, he was convinced that he descended from Aryans who converted to Judaism in the 16th century because they were fascinated by the Hebrew language. He, and, according to a letter he wrote Hitler just after the publication of the Nuremberg Laws, his father hated Eastern European Jews, and feared that they’d turn “Germany Jewish, and de-Germanize German Jews.” I don’t know if he was a self-hating Jews; he seemed quite comfortable with his inherent Germanness, viewing his Judaic grandparentage as an invention of wayward ancestors. He even donated money every year to the Nazi charitable drive. He was on board with much of the Nazi plan for Germany. He just did not feel Jewish, and the Nuremberg Laws denied him any right to choose not to be Jewish.
Averill: And yes, you heard correctly — he wrote a letter to Hitler in 1935. A year and a half before he would be arrested for violating one of the Nuremberg Laws, he wrote to express his frustration with the law. Like presumably many German Jews who considered themselves German first, and maybe not even Jewish at all, these laws were an affront. Many wrote letters to Hitler, because, per the laws of the Third Reich, Hitler had the power to provide exceptions to anyone he wanted. That was the full and total power of the Fuhrer. And that, ultimately, would be at the crux of the wild and brash defense Hellman made in 1937.
Marissa: In the fall of 1937, Leipzig prosecutors charged Hellmann. The woman he was employing as a housekeeper was a German woman under the age of 45 (and thus ripe to make little Aryan babies). Per Section 3 of the Law for the Protection of German Blood and German Honor, Jews were not permitted to employ “ethnic” German women who fell in that reproduction-possible category. So he was slated to go to court to be prosecuted. And being a lawyer, he decided to run his own defense.
Averill: The prosecutors called in only two witnesses: 53-year-old Frida Goldammer and 34-year-old Gertrud Dittrich. Goldammer did the cleaning, Dittrich did the cooking. Sometimes she made his meals at her home and delivered them. Sometimes she made them at his house and then ate with him and Goldammer in the kitchen. Whatever the arrangements, she and Goldammer confirmed that he did, in fact, employ her, and so was in violation of the law. Prosecutors also suggested that, since he was a lawyer, he must have been in violation knowingly, which was thus evidence of intent.
Marissa: All told, compared to the sex crimes of the Nuremberg Laws, Section 3 of the Honor code was a minor offense. Still, it would have ruined an already struggling man and his law firm. So he went on the defensive.
Averill: The first part of his strategy was to challenge the facts of the case as stated by the housekeepers. His version of the story was only slightly different from Dittrich’s, but made one key correction: that she cooked all his meals from her house, and she only came to his house to cook potatoes for herself.
Marissa: This, of course, challenged the language of the law, which stated that Jews could not employ female citizens of German blood who are younger than 45 years old in their household. Booyah.
Averill: From this logic, Section 3 of the Law was insufficient to prosecute. As Douglas Morris, who wrote about this case in his article “The Lawyer who Mocked Hitler,” the “law lacked the words that would have been necessary for rendering him guilty.” And since the language of the law was insufficient to make his circumstances illegal, the creator of the law was the only one who could clarify the intent of the law. Because Third Reich law came first and foremost from the body and mind of the Fuhrer, Hellmann issued a subpoena to Adolf Hitler.
Marissa: That subpoena would require that Hitler appear in court as a witness to the trial, which was scheduled for January 15, 1938. Predictably, the local courts refused to issue said subpoena. Hellmann tried to force the bailiff to deliver it directly, and when that failed too, he wrote another letter to Hitler which he claimed was itself an official subpoena. Hellmann insisted that Hitler appear in court in person. He intended to question the Fuhrer about the law. No surrogate would be appropriate. And Hellmann took it a step further: he demanded that Hitler be held in custody of the court until the proceedings.
Averill: But Hellmann also gave Hitler a convenient alternative to appearing in court and being incarcerated in anticipation of the court appearance. Because the Fuhrer was also the supreme legislator, Hitler need only clarify the language of the law by publishing the “missing sentence” in the Reich Law Gazette.
Marissa: On the day of the trial, Hitler did not appear in court. Hellmann continued to pursue the first part of his strategy, challenging the assumption that he employed her in his household, but the court proceedings records suggest he was quite agitated in court. He claimed that he had expected Hitler to appear, but did not continue to pursue the subpoena when he did not. At one point he requested a recess to check the most recent delivery of the Reich Law Gazette — perhaps truly hopeful, but perhaps cheekily, that the Fuhrer had responded to his request.
Averill: The courts, unimpressed by his logical argument, convicted him. He got two months imprisonment, with credit for time served. But things went downhill from there. His tactics won him a second trial and conviction for ‘attacking’ the Fuhrer through attempted subpoena. And to top it all off, he was disbarred on November 30, 1938. His disbarrment was not a result of the Hitler business, but because of the 5th installment of the Reich Citizenship Law, passed on September 27, 1938, which banned all Jews from practicing law.
Marissa: After Hellman served his prison sentences, he was taken to the Dachau concentration camp. He died on October 13, 1939, at Buchenwald.
Averill: One important lesson, I think, is that there is a long game here. The Nuremberg Laws, which are so important to understanding German Nazi persecution of German Jews, were built on prior legal precedences. It is unlikely that one day a group will wake up and have their citizenship, rights, and freedom stripped away. It’s a much longer process, which can stretch over years, and is built on layers and layers and layers of legal, social, and cultural exclusion and persecution. It starts out focused on a few subsections of the larger group, and then expands from there. I used a few sources and articles from the US Holocaust Memorial Museum to write this episode. Their motto is NEVER AGAIN. Obviously that means specifically that there must never again be a Holocaust of Jewish people. But it also means — never again the persecution of homosexual men and women, never again the murder of people with disabilities. Never again should we, all of humanity, allow the existence of a regime on racist, xenophobic, nationalistic, eugenic ideas. Never again should we allow the state sponsored violence and oppression of people based on their religion, race, sexuality, gender, ability, or anything else.
How are we doing with that promise so far?
How likely is the Handmaid’s Tale?
Marissa: Some of the persecution of Jews was mitigated and scaled back at various points between 1933 and the start of the second World War. As we’ve already noted, there was a sort of lull between the second half of 1933 and the death of President Paul von Hindenburg. Wary of international criticism, Hitler also toned down the violently anti-Semitic language and harassment of Jews just before and during the 1936 Olympics. But for the most part, the Nuremberg Laws, and those laws that specifically targeted Jews from 1933 and the many, many more in the years following, were deliberate actions to disenfranchise, dehumanize, and debilitate the German Jews.
Averill: There were always inconsistencies and contradictions throughout the Nazi regime. Hitler’s ramblings, those ramblings turned into policies, those policies put into practice — and practices that had no connection to policies or ramblings, vice versa, etcetera. That was true from the founding of the Nazi party to Germany’s surrender at the end of World War 2. But as seemingly random and bizarre as the content of the Nuremberg Laws seems, they were very successful in denying Jews both their citizenship and their humanity. And because they defined Jewishness on parentage–or rather, grandparentage–they codified the perfect storm of cutting edge eugenics with centuries of European anti-Semitism.
Peter Longerich, Holocaust: The Nazi Persecution and Murder of the Jews (Oxford University Press, 2010)
Doug G. Morris, “The Lawyer who Mocked Hitler, And Other Jewish Commentaries on the Nuremberg Laws,” Central European History Vol 49 (2016) 383–408.
Stacy Banwell, “Rassenchande, Genocide, and the Reproductive Jewish Body: Examining the Use of Rape and Sexualized Violence Against Jewish Women During the Holocaust?” Journal of Modern Jewish Studies Vol 15, No. 2 (July 2016) 208–227.
Frank Caestecker and David Fraser, “The Extraterritorial Application of the Nuremberg Laws. Rassenschande and “Mixed” Marriages in European Liberal Democracies*,” Journal of the History of International Law Vol 10 (2008) 35–81.
Mariken Lenaerts, National Socialist Family Law: The Influence of National Socialism on Marriage and Divorce Law in Germany and the Netherlands (Martinus Nijhoff Publishers, 2014).
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