5. The Nuremberg Laws

(1934–1935)

On 2 August 1934 the ailing President von Hindenburg finally died and Hitler became German head of state as well as Chancellor. It was an appointment that encapsulated the enormous change that had taken place in the eighteen months since Hitler had first been appointed Chancellor at the head of a cabinet which contained a number of people who were supposed to restrain him. Now, all talk of ‘taming’ Hitler was in the distant past. He was the undisputed ruler of Germany.

Shortly after Hitler became head of state, every member of the armed forces and civil service swore an oath of allegiance to him personally. Many of those in the army, like the young officer Johann-Adolf Graf von Kielmansegg, were pleased that Hitler had destroyed the power of the Stormtroopers and committed himself to rebuilding the German Army. Moreover, Kielmansegg and his comrades did not find it strange that they had been asked to swear an oath to Hitler. ‘Prussian-German history is full of personal oaths of loyalty,’ he says. ‘Indeed we almost preferred that to swearing loyalty to a piece of paper. Before we had been sworn in on the Weimar constitution, which nobody knew.’1

In the months before this consolidation of power, Hitler had demonstrated that he did not want to increase the role of the concentration camps within the Nazi state. Quite the reverse. He sought to show the world that the initial phase of the revolution in which ‘scores were settled’ was now over. In the spring of 1934 he had ordered the release of several thousand prisoners in an action that Himmler later privately called ‘one of the worst political mistakes the National Socialist State could have made’.2 By the summer of 1935 fewer than 4,000 people were imprisoned within the concentration camp system – while more than twenty-five times as many were held in conventional prisons.

As for the German Jews, Nazi policy remained one of restricting their rights within Germany while simultaneously encouraging them to leave the country. But it wasn’t easy for Jews to emigrate. As we have seen, Jews who decided to leave faced two enormous obstacles. The first was the Nazis’ desire to steal their money before they went, and the second was the problem of finding a country that would take them. One attempted solution to this impasse was agreed just seven months after Hitler came to power in the shape of the Haavara Agreement, signed on 25 August 1933. The idea was that German Jews would use their money to purchase German equipment – mostly farm related – which would then be exported to Palestine. The Jews would then leave Germany – with virtually no money in their possession – and once they arrived in Palestine they would be reimbursed for the cost of the German equipment, which would by then have been sold to companies in Palestine. German companies benefited because not only did they manage to sell equipment for export but foreign currency would have to be used to purchase spare parts for the machinery. And, obviously, the German Jews who emigrated to Palestine benefited because they were able to take some of their wealth with them.

The background to the scheme was the perceived threat of a Jewish-organized world boycott of German goods. In June 1933 the German consul to Jerusalem, Heinrich Wolff, stressed to his colleagues back in Germany the propaganda value of cooperating with Jewish groups to facilitate the agreement. He even said that Sam Cohen, one of the architects of the deal, would use his influence with the Hebrew newspaper Doar Hayom to show Germany in a positive light.3

 Not surprisingly, the Haavara Agreement was controversial. The president of the American Jewish Congress, Stephen Wise, condemned the deal. He thought the agreement damaged the prospect of an international boycott of German goods and amounted to conniving with Hitler.4Nonetheless, the advantages of the agreement were so beneficial to German Jews that the arrangement continued until the outbreak of war. While tens of thousands of German Jews were able to make use of this scheme and emigrate to Palestine, the significance of the Haavara Agreement in this history is much greater than just the number of Jews who were able to use it to protect their assets. What it illustrated was the ability of the Nazi authorities and Jewish agencies to work together. Indeed, it was this very notion of collaboration that so enraged many American Zionists at the time.

But what the Haavara Agreement most certainly did not demonstrate was that Hitler was somehow a ‘Zionist’ himself and in favour of the creation of a Jewish state in Palestine. He made his position on this matter clear in Mein Kampf: ‘It doesn’t even enter their [that is, Jews’] heads to build up a Jewish state in Palestine for the purpose of living there; all they want is a central organization for their international world swindle, endowed with its sovereign right and removed from the intervention of other states: a haven for convicted scoundrels and a university for budding crooks.’5Thus, while an expedient mechanism to expel Jews from the country quickly – like the Haavara Agreement – was acceptable for Hitler, a Jewish-controlled state was perceived as a phenomenally dangerous development. He never wanted the Jews to be in a position to control their own destiny.

Hitler continued, however, to be sensitive to foreign criticism of Jewish persecution. Although there is no evidence that his personal hatred of the Jews had lessened, he was concerned about spontaneous attacks on Jews by ordinary Nazis. As the letter sent by the Reich Interior Ministry about the Palm Sunday pogrom in Gunzenhausen had stated, ‘The Jewish question is to be handled by the government of the Reich,’ not by local hotheads.6 The problem Hitler faced was that many of his supporters still felt that the measures taken so far to exclude the Jews from the mainstream of German life had not been strong enough. Local groups, for instance, fought to ban Jews from swimming pools and ice rinks – even from whole towns. Rudi Bamber remembers that by 1935 ‘one had to be more and more careful because many of the towns and villages had notices, “Jews not wanted”, so it was difficult to find where one could go and be accepted as a Jew.’7

Even before the adoption of formal laws preventing sexual relationships between Jews and non-Jews, the Nazi propaganda claiming that Jews were ‘defiling’ German maidens was having an effect on young Jewish men like Arnon Tamir: ‘Speaking for myself, I can only say that at the time – I was just a young lad – the mere idea of becoming friendly, or more, with a German girl was poisoned right from the start by these horrible cartoons and headlines which claimed that the Jews were contaminating German girls. It was simply impossible for me … to approach a girl like any young person. We were afraid to give them the slightest justification for such claims. I don’t even want to talk about what happened to German men or women and Jewish men and women who were friendly with or married to each other. It must have been terrible for them.’8

In April 1935 the Deputy Führer, Rudolf Hess, wrote to party members warning them not to ‘vent their feelings by acts of terror against individual Jews’. Such actions only made it harder for Hitler to ‘rebuke at any time allegations of atrocities and boycotts made by Jews abroad’.9 But the spontaneous attacks did not stop, and four months later Hjalmar Schacht, the Economics Minister, and the man charged by Hitler with generating enough money to finance a massive armaments programme, complained that illegal anti-Semitic actions were damaging the economy.10 Schacht did not protest about the harassment and persecution of Jews on moral grounds, he simply wanted the illegality to stop. By implication, if the Nazi state could pass laws that codified and limited the scope of the persecution and in the process ended arbitrary actions against the Jews, that would represent a helpful step forward.

Legislation was finally introduced to outlaw sexual relationships between Jews and non-Jews in September 1935, when a new law for the Protection of German Blood and German Honour was passed at the time of the Nuremberg rally. Wilhelm Frick, the Minister of the Interior, had said at the end of July that legislation outlawing marriages between Jews and non-Jews was in preparation, but the speed with which this new legislation was finally adopted was extraordinary. The first hint that it was coming was in a speech given by Gerhard Wagner, Reich Doctors’ Leader, on 12 September. The following day Hitler said that he wanted the law passed in Nuremberg. The only difficulty was that there was currently no law to pass. So a team of civil servants, including Bernhard Lösener, a specialist in Jewish matters at the Interior Ministry, flew from Berlin to Nuremberg to draft the proposed legislation. On the 14th Hitler decided that he wanted to add another law to the mix – stripping Jews of German citizenship – so this too was created.

On the evening of 15 September, at a specially convened session of the Reichstag held at the Cultural Association in Nuremberg, Hitler announced that he had been compelled to bring in this new anti-Semitic legislation because ‘loud complaints of provocative actions by individual members of this race are coming in from all sides’. So it was necessary ‘to prevent this behavior from leading to quite determined defensive action on the part of the outraged population’. Hitler argued that his proposed legislation was an attempt to permit ‘tolerable relations’ between the Germans and the Jewish population. But he warned that if the ‘international Jewish agitation’ continued, he would conduct a ‘new evaluation’ of the situation.11

It was a classic Hitlerian performance – a mix of threat and falsehood. Just as he had at the time of the April 1933 boycott, he framed his actions as necessary to ensure that the outrage felt by the general population at the actions of the Jews did not turn violent. He also implied that the treatment that the German Jews received was determined in part by the conduct of the international Jewish community. The unspoken assumption underlying the speech was that if other countries let Hitler pursue the policies he wished, the German Jews would be spared even worse persecution.

After Hitler had spoken, Hermann Göring as Reichstag President gave a speech in which he slavishly supported his Führer. He focused in large part on what, at first sight, might appear to be the least significant part of the legislation that Hitler proposed that day – the Reich ‘flag’ act. This law, which called for the adoption of the swastika flag as the symbol of Germany, seemed relatively innocuous when compared with the overtly anti-Semitic nature of the other two pieces of legislation, but the origins of the flag act are revealing. Up until this point Germany had two legal flags – the swastika and the black, white and red flag of the German Empire. Hitler when he came to power had been careful not to offend traditionalists like President von Hindenburg and insist that the old flag of the Empire be dropped completely. So – bizarrely – German merchant ships had flown two national flags. This was the background to an incident in New York in July 1935 when protesters boarded the German liner the SS Bremen and threw the swastika flag into the water. Because the swastika flag was not the sole legal symbol of Germany, it had been possible for the Americans to argue that Germany as a country had not been insulted. The Nazi government was particularly enraged when Louis Brodsky, a Jewish American magistrate, did not treat the case as seriously as they wished. Hans Frank, president of the Reich Academy of Law, said that Brodsky was part of a Jewish ‘menace’ and that it was ‘most deplorable and also a most dangerous precedent when a Jew in so highly cultured a nation as the United States is permitted to debase the robe of judge to the extent of venting [the] undying hatred of his race …’.12

This new act changed the status of the swastika flag, and now – as Göring put it – ‘he who offends this flag insults the nation.’13 Göring professed to ‘feel sorry’ for the Americans in the context of the Bremen incident, because they had been forced to witness the actions of a ‘brazen Jew’. But from now on the swastika flag symbolized that Germany would remain true to Nazism ‘for all eternity’. Tellingly, he added that it was ‘self-evident’ that ‘no Jew may be allowed to hoist this sacred insignia.’ Shortly after Göring’s speech all three elements of what became known to the world as the Nuremberg Laws were passed – the Reich Flag Law, the Law for the Protection of German Blood and German Honour, and the Reich Citizenship Law which revoked the citizenship of German Jews.

Hitler never revealed publicly why he chose to move so suddenly in September 1935 to pass this anti-Semitic legislation, though the idea that Jews should not be considered German citizens nor be able to have sexual relations with non-Jews was certainly not new. But one suggested reason for this precise timing is persuasive: that Hitler had actually planned to make a broad statement about his foreign-policy demands at Nuremberg, but had been dissuaded at the last minute from doing so by Konstantin von Neurath, the Foreign Minister. Since Hitler had already called for a special sitting of members of the Reichstag and now had nothing but the Flag Law to put before them, he suddenly decided to push forward with the anti-Semitic legislation instead, motivated chiefly by a desire to bridge the gap in expectations between the activists in the party who were persecuting the Jews on the streets and the officials in government like Schacht who wanted greater clarity in the regime’s position on the Jews.14 In addition, it might also have been that Hitler thought the anti-Semitic legislation fitted well with the sentiments behind the Flag Law. He would surely have felt humiliated by the spectacle of the swastika flag floating in the water of New York harbour – a city the Nazis always associated with the Jews – torn from the SS Bremen, the pride of the German merchant fleet. There was certainly a pattern in Hitler’s behaviour, as we shall see later in the 1930s and again during the war, of lashing out against the German Jews in a reaction against foreign actions that angered him.15

In practical terms the new laws to a large extent only reflected the reality that already existed in much of Germany, since even before the legislation local Nazis had put pressure on non-Jews to separate themselves from Jews, whether in personal or business life. But nonetheless, the Nuremberg Laws marked a watershed in the attitude of the Nazi state towards German Jews. Now the law of the Reich – not just Nazi party hotheads – called for the ruthless separation of the Jews from the rest of the community. It was not only that the Jews were legally no longer ‘true’ Germans, the new legislation also invaded the private sphere of every German citizen. The German state had proclaimed that it had the right to decide with whom you could have sexual intercourse. The Gestapo – the secret police – could now examine what went on in private in each house. Everyone was vulnerable to denunciation by a mean-spirited neighbour. Who was that stranger of the opposite sex who visited you last night? Didn’t they look ‘Jewish’? More than that, the state could demand to know exactly what sexual acts you took part in behind closed doors, since they applied an extraordinarily wide definition of ‘sexual intercourse’. The Reich Supreme Court declared the following year that ‘the concept of sexual intercourse’ did ‘not include every indecent act, but is not confined to actual intercourse, i.e. apart from intercourse itself, [it includes] all sexual activities with a member of the opposite sex which are intended in place of actual intercourse to satisfy the sexual urges of at least one of the partners’.16

Then there was the continuing problem, for the Nazis, of working out who was a Jew and who was not – information that was vital in order to enforce the new legislation. But despite the opening sentence of the Law for the Protection of German Blood and German Honour declaring that ‘purity of German blood’ was ‘essential’ for the ‘continued existence of the German people’, the Nazis could not tell by examining ‘blood’ just who was a Jew and who was not, and there was no other definition of ‘Jewishness’ anywhere in the Nuremberg legislation. As a consequence the laws as passed on 15 September 1935 were unenforceable. Only in the middle of November 1935 were regulations finally announced which defined who was a ‘Jew’. This document talked about ‘Jewish blood’ and ‘racially full Jews’, but it had to resort to a religious definition to describe who was Jewish and who was not. It stated: ‘A Jew is anyone who is descended from at least three grandparents who are racially full Jews.’ But then it said that a ‘grandparent shall be considered as full blooded if he or she belonged to the Jewish religious community’.17 So the Nazis determined your ‘race’ by the religious affiliation of your grandparents.

The question of what to do about those Germans who had mixed ancestry occupied a great deal of the drafters’ time. Some Germans who were ardent nationalists – and appeared to be living an ‘Aryan’ life – had two Jewish grandparents. Yet other people with two Jewish grandparents were, to Nazi eyes, obviously Jews. The solution the Nazi officials devised was complex. It relied, once again, on examining the religious affiliation of the individuals concerned. So if you had two grandparents who were Jewish – by the definition of the decree – but you yourself had not married a Jew and were living a non-Jewish religious life, then you were not Jewish. However, if you had two Jewish grandparents and had married a Jew, or were worshipping as a Jew, then you were Jewish.

It was a mess. What the decree exposed was the utter fallacy of a blood or racial definition of Jewishness. For if the Nazis were serious in their racial beliefs, how could one person who had two Jewish grandparents be considered not Jewish, whereas another who had two Jewish grandparents be considered Jewish? Their background ought to mean that the amount of ‘Jewish blood’ flowing within their veins was exactly the same.

Nonetheless, Hitler proclaimed the Nuremberg Laws a success and called for the nation not to ‘stray from the straight and narrow path of the law’.18 He clearly saw these anti-Semitic measures not only as an ideological statement of the values of the Third Reich, but also as a means of restraining the wilder elements in the party who sought to pursue their own attacks. The day after the laws were passed, he reminded the party faithful that they should ‘continue to refrain’ from taking ‘independent action’ against Jews.19

Emil Klein, who joined the Nazi Party in the early 1920s, saw nothing unusual in these discriminatory measures. ‘There wasn’t only apartheid in Germany alone,’ he says, ‘one heard about apartheid in America. It was nothing special that happened in Germany. It was actually only a part of what was taking place – here and there – the whole world over.’20 And while he is right – and it is important to remember – that racial discrimination was not confined to Germany at the time, these comments are also disingenuous. For something ‘special’ was happening in Germany, since the vehemence with which the Nazis embraced racial theory was astounding.

There were also, paradoxically, many German Jews who saw the Nuremberg Laws in an almost positive light. Yes, they were obviously discriminatory, but the new laws appeared to outline the limits of persecution. ‘These were the rules,’21 and German Jews should live within the rules. It was as if the new anti-Semitic legislation offered Jews protection from arbitrary persecution by local thugs.

Many ordinary Germans did not overly concern themselves with the measures taken against the Jews. What mattered more to them was the massive reduction in unemployment that had occurred since Hitler came to power – from 6 million unemployed in 1933 to fewer than 2 million by 1936. Even though the Nazis massaged the figures – for instance women were no longer included in the data – it was an undoubted success. ‘It was in 1934 that you saw that something might be changing,’ says Erna Krantz, then growing up in Bavaria. It was ‘a glimmer of hope for everyone. Not just for the unemployed, but for, well, for everybody, because we all know that we were downtrodden, and in 1933 Germany had collapsed. We can’t hide the facts, can we? And that’s how it was, lots of things got better. The salaries for civil servants and white-collar workers got better. Everything was improving a little, I can’t remember exactly, I only know about that time from our personal situation as a household. You saw the unemployed disappearing from the streets. That was already a big plus. Of course you did notice that there was a certain line behind it, the youth were being drawn into sport, drawn into community service above all, which was something very significant. They started the construction of the motorways, and all that provided work and took people off the streets. Yes, it definitely was a positive time, otherwise why in the end did the masses follow this man? Why?’22

This economic success was obtained primarily by borrowing on a large scale, most notably for a massive expansion in military spending. Between 1933 and 1935 expenditure on the German military increased from less than 1 per cent of German national income to nearly 10 per cent – a bigger and quicker increase than ever seen before in peacetime in a capitalist state.23

Hitler’s primary focus during this period was not on the ‘Jewish question’, but on building up Germany’s armed forces. Almost everything else was subordinate to this aim. As for his foreign policy, he wanted to deal with foreign nations one by one, rather than through the League of Nations. To this end – and to pursue his policy of rearmament – he withdrew Germany from the League soon after he came to power in 1933. Two years later, in June 1935, Hitler’s ambassador to the United Kingdom, Joachim von Ribbentrop, signed the Anglo-German Naval Agreement in London, which laid down the permissible size of the German fleet as a proportion of the British navy. The agreement broke the Versailles treaty, but there were no adverse consequences for Germany. Hitler said the day the Anglo-German Naval Agreement was signed was the happiest of his life.24

None of this should have come as a surprise to anyone who had read Mein Kampf. Hitler considered Great Britain a possible ally, and he wanted strong armed forces so that he could gain new territory for Germany in the east. He had said all this back in the 1920s. However, he had also said how much he hated the Jews and that he saw them as a deadly threat. It would still be some years before he would act decisively on this issue – but that time was coming ever closer.

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