"Non-Germans" Under the Third Reich (29 page)

(1) A Jew is anyone descended from at least three racially Jewish grandparents. Section 2, paragraph 2, sentence 2, is applicable. [Sec. 2, par. 2, sentence 2, read, “A grandparent can safely be considered fully Jewish if he or she belonged to the Jewish religion.”]

(2) Also considered to be a Jew is the citizen of mixed ancestry (
Mischling
) descended from two fully Jewish grandparents

a) who at the time the law was promulgated belonged to the Jewish religion or subsequently joins it;

b) who at the time the law was promulgated was married to a Jew or who subsequently marries one;

c) who is the offspring of a marriage to a Jew as defined in paragraph 1 that is contracted after the effective date of the Law for the Protection of German Blood and German Honor of September 15, 1935 [RGBl. I 1146];

d) who is the issue of extramarital intercourse with a Jew as defined in paragraph 1 and is born after July 31, 1936.

The definition of who was a member of the Jewish religion hinged on purely external factors, such as being named in the rolls of the Jewish religious community. In principle, therefore, subjective factors such as believing that one belonged to the Jewish religion were not determinative.
⁴¹

Not considered to be Jews were half Jews, “
Mischlinge
of the first degree” who did not meet the criteria under section 5, paragraph 2, of the First Decree to the Reich Citizenship Law, that is, who were married to a person “of German blood” or who did not belong to the Jewish religion (so-called privileged
Mischlinge
, as well as so-called
Mischlinge
of the second degree, that is, persons having only one Jewish grandparent [quarter Jews]).

This concept of the Jew and of the Jewish
Mischling
, that is, the mere existence of a fixed definition, served at first to calm public debate and satisfy judicial misgivings. Yet this definition could not be regarded as final, since, as part of the preparations for the Final Solution, it was supplanted in the Occupied Eastern Territories by a broad new definition
⁴²
in order to permit the apprehension of as many victims as possible—a procedure that in principle could also be applied in the Reich itself. Moreover, that the definition of the Jew was not conclusive is shown by the fact that the Führer, as the supreme legislator, was authorized to grant exceptions to the classification of a person as a Jew, the “indispensable principle” of National Socialism.
⁴³
The processing of petitions for exemption was, however, discontinued by the Reich Ministry of the Interior in 1942,
⁴⁴
probably so as not to disturb the progress of the deportations, which were then proceeding at full throttle. The classification of Jewish
Mischlinge
, too, was not settled once and for all. Whereas they did enjoy a certain protection within the bounds of the Altreich in the sense that anti-Jewish legislation was not applicable to them,
⁴⁵
people belonging to other ethnic groups that were not considered “good races” were generally equated in legal status with the Jews. At least, such equivalent status was contemplated. Thus, in the opinion of the racial and ethnic experts in the Party headquarters of the NSDAP, Jewish
Mischlinge
from the Annexed Eastern Territories were to be deported just the same as Jews.
⁴⁶
And in 1942 even the authorities in the Reich itself agreed that half Jews (“
Mischlinge
of the first degree”) were in principle to be equated with Jews for purposes of the Final Solution;
⁴⁷
the full implementation of this policy was prevented only by administrative and war-related difficulties.

In detail, the meaning and purpose of the Reich Citizenship Law consisted in laying the foundation for a comprehensive restructuring of the law of citizenship; starting from this point, the legal status of German citizens of Jewish descent could be made null and void. In the light of this objective, any attempts to define this new type of citizenship and to determine its actual meaning were of a purely formal nature, susceptible to any interpretation desired by the political powers. For, albeit the duties incurred by citizenship (not duties of “allegiance” but merely “outward obedience” [
Pflichtenverband
]) still evoked a concrete image, the legitimate claim of state subjects to the “protection of the Reich” (
Schutzverband
) “within the framework of the prevailing laws” was presently unmasked as an empty formula. Such protection was to have included life, property, and economic activity but not the possession of political rights;
⁴⁸
yet it was in fact a pseudoprotection inasmuch as parliamentary and legislative procedure had been eliminated and the will of the Führer was supreme, able to overturn the “prevailing laws” at any time. For the rest, the circumscription of the set of legal protections served merely to distract from the fact that certain classes of people were—later by means of normative regulations as well—excluded or scheduled for exclusion from all political (and in fact from all cultural and economic) areas of life. As stated in Wilhelm Stuckart and Hans Globke’s official commentary on the Reich Citizenship Law, Jews possessed freedom of religious observance, cultural activity, and economic life within the framework of the laws; however, “Jewish meddling in the formation of state, economic, and cultural policy of the Reich [was] made impossible”; the Jews “[would have to] accustom themselves to the fact that their influence upon the development of German life [was] finished once and for all.”
⁴⁹

As demonstrated by subsequent anti-Jewish legislation, this supposed protection “within the framework of the laws” in fact existed only on paper. Although for reasons of domestic and foreign policy, Jews were still permitted the status of state subjects, the qualifications already mentioned made it increasingly formal and practically worthless. Whereas the general duties and obligations of state subjects of Jewish descent not only remained in force but were actually toughened (e.g., by changes in the tax law), they lost one legal protection after another. The state’s part of the “social contract” (
Schutzverband
), whose advantages even Jewish state subjects were supposed to enjoy, was reduced to nothing, while the citizen’s part (
Pflichtenverband
) became all-encompassing. In practice, state subject status under inferior law meant nothing less than participating in all public duties and obligations while being excluded from all legal guarantees (rights of political partnership), a development that had been sketched in advance, abstractly yet with great precision, in the judicial literature.

State subjects of this class, therefore, had a status very similar to that of foreigners living “as guests in Germany” and subject to “alien law.”
⁵⁰
That is to say, German state subject status was no protection at all from gradual civil and economic extinction, since the distinction between citizens of the Reich and state subjects had opened the way to unrestricted application of special-law provisions to all areas of life.

Nevertheless, the retention of German state subject status by those German Jews remaining within the bounds of the Reich meant that they also retained legal capacity and were thus deemed capable of owning property, being gainfully employed, and receiving inheritances. This meant that numerous persecutory measures had to be disguised as “restrictions” or comparative prohibitions on legal rights of Jewish state subjects that were considered still to exist in the abstract. As a result, even the Reich Citizenship Law appeared unsatisfactory to the radical anti-Semites in the National Socialist (administrative) leadership, since it still allowed these persons state subject status. Whereas the original assumption was that the issue would resolve itself as these persons died out, much broader considerations later came into play as to how to prevent the acquisition of German state subject status by Jews and other “aliens” in the future. From a technical standpoint, this required the creation of new regulations governing the acquisition of state subject status, since section 1, paragraph 2, of the Reich Citizenship Law had explicitly left the old procedures unaltered. What the administrators envisioned was a conclusive definition of various classes of state subjects, with graduated rights and duties, along the lines of those already set forth in the Reich Citizenship Law. These plans were justified by the presumed necessity of a comprehensive reorganization of the law of state subject status (
Staatsangehörigkeitsrecht
), the development of which is indicated below.

3. Plans for New Regulations

On February 14, 1938, the Reich minister of the interior sent the other Reich ministers the draft of a new State Subject Law, whose purpose,
⁵¹
going even further than the Nuremberg Laws, was the future elimination of “Jews and aliens” as German state subjects,
⁵²
although the draft contained no precise definition of the term
alien
. In particular, the naturalization of foreigners (“admission to the protection [
Schutzverband
] of the German Reich”) was to be made more difficult. Required was, among other things, the taking of a so-called loyalty oath to the German Reich, in which the applicant—in imitation of feudal oaths—swore to be faithful and obedient for all time. The proposal further provided that legitimate children of Jews, Jewish
Mischlinge
, or “otherwise alien” persons who were the issue of marriages contracted between German state subjects after the law took effect could no longer (as previously under the Reich Nationality Law of 1913) acquire German state subject status by virtue of birth (an exception was children of approved
Mischling
marriages).

This harsher position on the offspring of “aliens” who nevertheless belonged to the German polity was most likely never approved by all the Reich departments,
⁵³
since negotiations dragged on for more than three years. The issue, as far as the Reich Ministry of the Interior was concerned, was nothing less than the creation of (legal) congruence between the concept of belonging to the German
Volk
and state subject status, that is, between
völkisch
-racial terminology (
völkisch equality, German or racially related blood
) and constitutional concepts, since, in fact, the Reich Citizenship Law had effected no change whatsoever in the law governing state subject status. The Jews retained their status as German state subjects, and the Right of Reich Citizenship was not further codified. The plan now was to get serious about the idea that only ethnic Germans could enjoy German state subject status, whereas all others were to be excluded from that status. In an express letter to the Supreme Reich Agencies dated June 16, 1941,
⁵⁴
the Reich minister of the interior elucidated his proposal, since altered in several respects, for a state subject law that expanded and refined this idea. According to it, German state subject status was in the future to be divided into three categories: Reich citizenship (
Reichsbürgerschaft
), state subject status (
Staatsangehörigkeit
) and conditional state subject status (
Staatsangehörigkeit auf Widerruf
). Furthermore, in consideration of Germany’s future colonial responsibilities in the conquered territories, there was to be a category known as “protected status” granting limited domestic rights; this was to be the status of the “majority of the peoples not ethnically related to the German
Volk
.” Jews were to be excluded from the acquisition of both German state subject and protected status. This draft reflects, in abstract form, the rough ideas developed in 1940 by the
Reichsführer
-SS (in his capacity as Reich Commissar for the Strengthening of German Nationhood) regarding the status in public law of the ethnic groups living in the Annexed Eastern Territories.
⁵⁵
However, the negotiations on this draft also bogged down, because the Reich Chancellery raised administrative scruples (objecting to too-brief probationary periods for the new classes of state subjects);
⁵⁶
and no agreement could be reached
⁵⁷
on an alternative draft thereupon presented by the Ministerial Council for the Defense of the Reich on January 20, 1942.
⁵⁸

Therefore, no comprehensive new regulation of state subject status came into being. The issues in question were much too broad and controversial to be settled by the promulgation of a single law. Yet partial results were achieved in that the question of
graduated
state subject status was separated from that of the state subject status of German Jews. When the question of the state subject status of the German Jews became compelling with the inception of deportations of Jews to the East in 1940, its solution, as is shown below, was given priority owing to the numerous questions of property rights that depended on it. The Reich Chancellery suggested that the issue of graduated state subject status, which had yet to be empirically tested in the Reich, could be temporarily deferred.
⁵⁹
Pertinent regulations were not issued until April 1943.
⁶⁰