
On February 27, 1933, Marinus Van der Lubbe—an unemployed bricklayer from the Netherlands with Communist sympathies—set fire to the Reichstag (Parliament) Building in Berlin. Most likely, Van der Lubbe was working alone . . . but that didn’t stop Adolf Hitler and his Nazi Party cabinet from using the fire as an excuse to initiate a broad anti-Communist pogrom. Even before the Reichstag Building had been extinguished, Hitler had labeled the arson a “Communist outrage” and his underlings immediately kicked-off a series of arrests and assaults on well-known Communists and Communist sympathizers all around Germany.
Technically speaking, that initial roundup of Communists was an illegal violation of the Weimar Constitution, which was still in-force. Although Hitler was the un-elected Chancellor of Germany, the Reichstag was still a multi-party body in-which the Nazis only had thirty-two percent of the seats, and Germany was still a constitutional, democratic republic (not unlike our own). Hitler was strangely concerned with maintaining an appearance of legality as he tightened his grip on Germany so, the next day, he convinced President Paul von Hindenburg to sign the emergency Reichstag Fire Decree into law. Under Article 48 of the Weimar Constitution, this was perfectly legal. The decree wiped out almost all major German civil liberties and provided a legal basis for the ongoing suppression of the Nazis’ political opposition, all in the name of national security.
The decree read, in part, “It is therefore permissible to restrict the rights of personal freedom, freedom of opinion, including the freedom of the press, the freedom to organize and assemble, the privacy of postal, telegraphic and telephonic communications. Warrants for House searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.” As you might imagine, it is a real ‘red flag’ when a government begins to trample peoples’ civil liberties without any due process. It doesn’t make it any better when that government comes back later (whether 24 hours or 24 weeks or 24 months) trying to retroactively legalize that trampling.