Source: Karl A. Schleunes, Chapter 4 in: The Twisted Road To Auschwitz ΓÇô Nazi Policy toward German Jews 1933-39, (Illinois 1970).
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 ΓÇô and Streicher was mainly interested in illicit ones ΓÇô 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 ΓÇ£raceΓÇ¥, ΓÇ£racial hygieneΓÇ¥, ΓÇ£eugenicsΓÇ¥, 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 ΓÇ£mixed-marriageΓÇ¥ 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 ΓÇ£Reich's Party Rally of FreedomΓÇ¥. 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 ΓÇ£Law for the Protection of German BloodΓÇ¥.
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 ΓÇ£Legislation on the Jewish QuestionΓÇ¥ 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 ΓÇ£JewΓÇ¥. 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 ΓÇô first to Frick, then to Hitler and finally back again ΓÇô 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 ΓÇô ΓÇ£citizen of the ReichΓÇ¥ or Reichsangehoriger ΓÇô 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 ΓÇ£Law of the Protection of German Blood and HonourΓÇ¥ 58 , as it was finally called, made ΓÇ£marriages between Jews and citizens of the state with German related to bloodΓÇ¥ 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 ΓÇ£tolerable arrangementΓÇ¥ 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 ΓÇ£fresh tensionsΓÇ¥ 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 ΓÇ£JewishnessΓÇ¥ 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 ΓÇ£full-bloodedΓÇ¥ 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 ΓÇ£JewΓÇ¥ 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 ΓÇ£First Supplementary Decree to the Reichs Citizenship LawΓÇ¥ 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 ΓÇ£Jewish Mischlin gΓÇ¥ 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 ofΓÇ£German or closely related originsΓÇ¥.
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 ΓÇ£JewΓÇ¥ and another 300,000 one-half or one-quarter Jews who fell into the ΓÇ£Jewish Mischling ΓÇ¥ 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 ΓÇô and this had been the Nazi message from the outset ΓÇô 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 ΓÇ£genealogical researchesΓÇ¥ 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 ΓÇô in private if not in public ΓÇô 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 ΓÇô which had the effect of ΓÇ£protectingΓÇ¥ Jews ΓÇô but the occasional ΓÇ£good lawsΓÇ¥ 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, ΓÇ¥Erb- und Rassenpflege in Gesetzgebung und Rechtssprechung des Dritten ReichesΓÇ¥. 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 ΓÇ£Als RassereferentΓÇ¥, 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 ΓÇ£contact manΓÇ¥ in the Interior Ministry. See ΓÇ£Witness of Righteousness: The Work and Faith of Dean GrueberΓÇ¥. 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, ΓÇ£Als RassereferentΓÇ¥.
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 ΓÇ£racesΓÇ¥.
67 Schumacher Archiv, Folder 240 I, BDC.
68 For an exact listing of who could marry whom, see Dr. Rissom, ΓÇ£Mischehen im Lichte der neuen GesetzgebungΓÇ¥, 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 ΓÇ£SS-BewerberΓÇ¥, in Gutachten des Instituts fuer Zeitgeschichte (Munich, 1958), p. 349.
73 Trevor-Roper, ed., Hitler's Secret Conversations, p. 358.
