Imma post a long read of mine, since it seems relevant now more than ever.
Acts like this and the way the US Judiciary turns a blind eye to violations of the US constitution are scary, because it’s an erosion of the Rule of Law. There is also the case of the paralysation of the federal legislature. I say this as a graduate law student in Germany, such blatant disregard for the Rule of Law is what we saw in the late Weimar Republic under Hindenburg presidency (1925-1934). I’ll give a short overview on what I’d define as acts that constitute an erosion of the Rule of Law, similar tendencies between the federal Weimar Republic and the US and a timeline so you can see why this is worrying.
· Holding the legislature hostage. Crippling (state-) government. In Germany it was extreme political fragmentation that made the (democratically legitimized) legislature unfunctional, Hindenburg dissolved the Reichstag and held new elections often. In the US it’s slightly different, but as far as I can see the GOP is doing everything it can to block the legislature. On a federal level it’s Mitch McCornell and on state level we see examples like Oregon, where Republican members of the legislature don’t show up as to block voting on bills. The effect is the same, no functional and democratically legitimized acts of the legislature.
· Not being able to control armed militias of “loyal citizens” who oppose legitimate acts of government. The Oregon Militias that harbour GOP lawmakers and organize manifestations aren’t really that different from the Freikorps of the 1920’ies, (https://en.wikipedia.org/wiki/Freikorps). While Weimar is an extreme example, the US state governments seem either unwilling or unable to keep actors that actively challenge democratically legitimate powers under control.
· Not enforcing the law, failing to uphold constitutional duties. This one is frightening, the Weimar Republic did have a democratic constitution (albeit some flaws), however in the end the national socialists didn’t even abolish it. An example is the way the Hindenburg government intervened in the German (federal) state of Prussia in 1932, (https://en.wikipedia.org/wiki/Preu%C3%9Fenschlag )Via two acts of emergency they brought the Prussian Government under federal control, while this was later struck down as unconstitutional, the Hindenburg government only partially restored Prussia’s sovereignty (not before putting people loyal to the Hindenburg government in key positions.)
Hindenburgs government just ruled via unconstitutional executive orders while having crippled the German federal court system, ignoring rulings. In 1934 they replaced the federal court with the “volksgericht” and judges like Roland Freisler held mock trails to condemn thousands to death, sometimes quite literally throwing the book at them, while yelling that “he needn’t have laws to have them put to death.” In the US people are dying in internments camps while the US has a constitutional duty to guarantee the safety of people in federal care via the 14th amendment.
· An aging and incompetent president, the Weimar Republic had Paul Hindenburg, who basically did everything to undermine a functional Rule of Law. He was the candidate no one really wanted, in the end he clung to power and ruled via Executive Orders backed by a state of emergency. While Trumps methods are different, the outcome is similar. Rule of Law is weakened.
· A hostile political climate, while the US isn’t at the brink of civil war, like Weimar was, however there is no denying that the American political climate, at least from an outsiders perspective, is becoming ever more hostile. People are being threatened and sometimes killed.
· Fringe constitutional law theories, things like the unitary executive theory (https://en.wikipedia.org/wiki/Unitary_executive_theory), to me seem oddly similar to things that Carl Schmitt, wrote about the powers the Reichspräsident, and later Hitler should have. (https://en.wikipedia.org/wiki/Carl_Schmitt#On_Dictatorship).
Timeline, Weimar’s decline:
1925 President Friedrich Ebert dies and Paul Hindenburg succeeds him.
1929 Global economic crisis, shit basically hits the fan, economical uproar means political uproar. looks like we’re here
1930ies Ever more executive acts and declarations of emergency, the Reichstag is dissolved more often than it is in session. Meaning that there is no functional legislature.
1932 Hindenburgs gets reelected, a right wing government is formed that interferes in state rights. Prussia (at that time left wing) is basically put under influence of the federal government. German Supreme Court rulings to end this are ignored. Rule of Law is basically abandoned.
January 31th 1933, after elections Hindenburg makes Adolf Hitler Reich chancellor, head of government.
February 27/28th 1933, Fire in the Reichstag, state of emergency where Hindenburg gives Hitler unlimited executive powers.
March 24th 1933 Federal structure is abolished. Tyranny by the federal government, states are abolished.
December 1st 1933 The NSDAP becomes synonymous with the State, within a year Hitler has succeeded building a totalitarian state.
August 2nd 1934, Hindenburg dies and the position of Reichspräsident is abolished. From 1934 on it’s safe to state that the Rule of Law in Germany is dead, laws are interpreted or just ignored. From that point on the reign of terror really kicks off. From 1933 Jews are stripped of their citizen status, Nuremberg race-laws and forced euthanasia in 1935, Pogroms in 1938 and the start of WW2 in September 1939.
My goal here isn’t to compare Trump to Hitler, I mean to point out that a regime change like the one that happened in Weimar can only happen if the Rule of Law is substantially weakened. Catastrophic events like in Weimar couldn’t have happened if Hindenburg and others hadn’t systematically dismantled the German Rule of Law in the years 1925-1933. Political extremism paved the way first, the economic crisis of 1929 played its part and buffoons like Hindenburg gave Hitler the keys to the city in the end.
I wonder what will happen if US politics keeps getting more volatile and inert at the same time, Trump wins 2020, the Rule of Law and the constitution keep being disregarded and a global economic crisis like the one in 1929 happens… Which will happen now.
I can’t predict the future, I can only look in the past from the perspective of someone who has a passion for constitutional law, history, and philosophy.
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