TBA BRIEFINGS OCTOBER 2015 ♦ TOPEKA BAR ASSOCIATION ♦ Defining Rule of Law TBA Office Tiffany Fisher, Executive Director In this and next month’s essay, I will attempt to 534 S. Kansas Avenue, Suite 1130 examine the question of whether people may take comfort Topeka, Kansas 66603 that the rule of law will always prevail over arbitrary Phone: 233-3945 email: [email protected] administration of justice. Considering the facts of one of www.TopekaBar.com the most extreme cases of national crisis known to Western Civilization, the answer might seem to be “yes” with the Board of Directors caveat that the law need not be just or even reasonable. James P. Rankin, President This and next month’s essay suggest that the rule of law Laura Graham, President-Elect may be twisted to create an earthly hell. Dave Newbery, Treasurer Diane Bellquist, Secretary ______Mark Bennett, Director Glenda Cafer, Director “So whatever you wish that men would do to you, do so to Vince Cox, Director By Jim Rankin them; for this is the law and the prophets.” James R. McEntire, Director Kyle Mead, Director Matthew 7:12 RSV Amanda Vogelsberg, Director Jim Wright, Honorary President Judge Ernst Janning: “Judge Haywood… the reason I asked you to come: Those people, those millions of people…I never knew it would come to that. You must believe Committee Chairpersons it, you must believe it.” Stephen W. Cavanaugh, Bench-Bar Judge Dan Haywood: “Herr Janning, it “came to that” the first time you sentenced Terri Bezek & Anthony Mattivi, Continuing Legal Education a man to death you knew to be innocent.” Anthony Mattivi & Ron Wurtz, Criminal Law Judgement at Nuremberg, A play by Abby Mann (1957) Alan Alderson, Family Law Vince Cox, Law Day October 1, 1946, the International Military Tribunal sitting at Nuremberg handed Christopher Joseph, Legislative down the individual sentences for more than 20 Nazi leaders who were on trial since Mary Christopher, Medical-Legal Shaye Downing & Doug Shima, Membership 1945. Twelve of the defendants were sentenced to death and hanged. The international Dan Gronniger, Memorials military trials involved those members of the Nazi high command such as Göring, Pedro Irigonegaray, Naturalization Hess, Jodl, and Kaltenbrunner, then in allied custody. Hitler and Goebbels committed Scott Sumpter, Probate suicide in the spring of 1945 and many other Nazis, such as Adolf Eichmann, escaped S. Lucky DeFries, Prof. Ethics & Grievance Germany or were hiding within Germany. After the International Tribunal handed Ryan Hellmer, Program & Entertainment Natalie Haag and Laura Graham, Public Relations down its verdicts, further international cooperation concerning the trials became Roger Fincher, Public Service impossible.1 Sarah Morse, Publications Sarah Morse, Young Lawyers Division The Nuremberg Trials were not universally supported. Certainly not in Germany Carol Ruth Bonebrake, Service to the Bar but not even in the United States. Harlan Stone, Chief Justice of the United States Supreme Court at the time, described the proceedings as a “sanctimonious fraud” Lawyers’ Assistance Committee and a “high-grade lynching party.” Associate Justice William O. Douglas said at If you or someone in your office feels a need to discuss a problem involving alcohol, substance abuse or depression, Nuremberg, the Allies “substituted power for principle.” The ex post facto nature or with life in general, please call a member of the TBA of the international human rights concepts supporting the Nuremberg prosecutions Lawyers’ Assistance Committee. Confidentiality assured. raised concerns because these principles had not existed as law prior to the war. Jeb Benfer, Chair...... 233-2323 Nevertheless, the United States proceeded with additional Nuremberg Trials after the Kerry Gasper...... 233-8862 International Tribunal had completed its work.2 John Harper ...... 354-8188 Claude Lee...... 783-8334 Among the subsequent trials were the so called “Justice Trials” (officially styled” Billy Rork...... 235-1650 The United States of America v. Joseph Altstötter, et al, 3 T.W.C. 1 (1948), 6 L.R.T.W.C. Jon Snyder...... 235-5500 1 (1948), 14 Ann. Dig. 278 (1948)), which began March 5 and ended December 4, Bryan Smith...... 234-2453 1947.3 The Justice Trials were the subject of the celebrated 1961 film Judgement at Or call KALAP toll-free at 1-888-342-9080 Nuremberg, starring Spencer Tracy, Marlene Dietrich, and Maximilian Schell. Sixteen ♦ TBA BRIEFINGS ♦ lawyers and judges were charged with furthering the Nazi policy of racial purity by rendering unwarranted verdicts and assisting with enforcement of Nazi eugenics Editor: Sarah Morse laws. The indictment included four counts. All defendants were charged with the first Contributors: Terry Beck, Doug Shima, Amanda Kiefer and Rich Eckert. three: viz conspiracy to commit war crimes and crimes against humanity; war crimes continued on page 4 ♦ Page 2 ♦ TBA BRIEFINGS OCTOBER 2015 continued from page 4 - President's Column presiding judge at the Nuremberg Special had died before the trial began and one against civilians in territories occupied Court from 1937 to 1945. The case in case resulted in mistrial. Four defendants by Germany and against soldiers question involved a 68-year-old Jewish were sentenced to life in prison and six of countries at war with Germany; man named Katzenberger. Katzenberger defendants were imprisoned for shorter and crimes against German civilians was tried under Article 2 of the Nazi law for terms. Few convicted defendants served and nationals of occupied territories. protection of German blood. The law forbad their entire prison term. The two most The fourth count of the indictment sexual relations between Jewish persons notorious of the Nazi judges, Roland charged seven of the defendants with and other German nationals. Katzenberger Freisler, president of the People’s Court membership in the SS, SD, or the was accused of having sex with a 19-year- in Berlin, and Reich Minister of Justice, leadership corps of the Nazi Party, all old German girl. Both Katzenberger and the Otto Theirack, escaped the judgement of which had been declared criminal girl denied the charges and described the at Nuremberg altogether. Freisler was organizations by the International relationship as fatherly. The only evidence killed in a February 1945 bombing raid Military Tribunal. Essentially, the submitted was that the girl had been seen on Berlin. Thierack committed suicide defendants were charged with judicial sitting on Katzenberger’s lap. For Judge after his arrest by the allies. Rothaug that was sufficient. Manuevering murder and other atrocities, which they Clearly, the German judges the case into a special proceeding, Rothaug committed by undermining law and participated in and enabled Nazi permitted uniformed Nazi officials to offer justice in Germany and circumventing atrocities. These were adult men, opinions as to Katzenberger’s guilt. In order traditional legal procedure in order to educated, cultured and worldly. How did to enhance the normal punishment for Article enable mass persecution, enslavement the judges succumb to Nazi influence? 2 violations (usually life in prison), Rothaug and extermination. Writing in the New Republic, retired interpreted a law—prescribing death for law Seventh Circuit Court of Appeals Judge perhaps the most notorious example violations intended to take advantage of the Richard A. Posner provided insight of the judicial crimes involved Judge war effort—as applicable to Katzenberger. concerning judges becoming caught up Oswald Rothoug. Rothaug was the Rothaug imposed in mass movements: the death sentence on Katzenberger “Perhaps in the fullness of time the on the ground that growing of marijuana plants … will Katenberger had come to be no more appropriate KICK exploited the German objects of criminal punishment than “black out” rules—an ‘dishonoring the race.’ Perhaps not; air raid precaution— but [the story of the German judges] BACK in order to pursue can in any event help us to see that his sexual interests. judges should not be eager enlisters WITH THE COURTS Katzenberger was in popular movements of the day, executed and the or allow themselves to become so German girl was immersed in a professional culture imprisoned for that they are oblivious to the human perjury. When the consequences of their decisions.” issue of insufficient Judge Posner’s comment helps us evidence was raised, understand and relate the problems of Rothaug stated: “it is Germany in the 1930s and 40s to our sufficient for me that JUST IN CASE own time and place, but there is a darker A PODCAST BY the swine said that a and more compelling prospect. The German girl sat upon German judges were influenced by the his lap.”5 authoritarian tradition of the German Ten of the Justice Empire, they had no long tradition of Trial defendants working through challenges to a liberal Hosted by Paige Nichols, and featuring criminal-law cases just in from the United States Supreme Court, the Tenth Circuit, and the Kansas Appellate Courts were found guilty. constitutional order and in 1934 they, Four were acquitted. along with other civil servants, were TUNE IN AT MONNAT.COM/PODCAST Two defendants were required to swear allegiance and loyalty not included in the to Adolph Hitler. Moreover, there was 200 W. Douglas, #830 | Wichita, KS 67202 | 316.264.2800 judgment because one continued on page 5 ♦ Page 4 ♦ OCTOBER 2015 TBA BRIEFINGS continued from page 2 - President's Column comes before the state. Kant’s thinking is philosophical predisposition toward rigid consistent with liberal constitutionalism thinking that affected judicial rulings. where individual freedom is in general Perhaps another insight—looking beyond theoretically unlimited and state authority the circumstances of the judiciary—is is limited. even more helpful: kant’s thinking inspired German Save the “There are many features which were 19th and early 20th Century liberalism. then regarded as ‘typically German’ Kant’s Rechtsstsaat—rule of law— which are now equally familiar in idea is also found in modern German Turkey Shoot America and England, and many public law including the Weimar Date symptoms that point to a further Constitution of 1919. Indeed, the Weimar November 20, 2015 development in the same direction: Constitution contained provisions Creekside at Berryton the increasing veneration of the protecting fundamental rights, division state, the fatalistic acceptance of of governmental power, and a measure ‘inevitable trends,’ the enthusiasm for of superior federal court judicial review Holiday Party ‘organization’ of everything (we now (albeit generally limited to questions of December 3, 2015 call it ‘planning’).” consistency of state or Länder regulations Governor's Row House Frederich von Hayek, the Road to with the national constitution). The Serfdom (1944) Weimar Constitution was based upon liberal democratic principles Rechtsstaat consistent with the idea of Rechtsstsaat The German philosopher Immanuel and technically remained Germany’s Kant (1727–1804) is credited with constitution throughout the Nazi period.6 Community introducing the term Rechtsstaat or Unfortunately, the history surrounding constitutional state into German legal the implementation of the Weimar Events thought. Kant appears to have developed Constitution and the Constitution’s the concept based upon his observations sovereign oriented provisions made Calendar of the late 18th century developments survival of its democratic and republican of the United States and French written principles problematic. constitutions. Kant’s concept focused Women’s Night Out Weimarer Republik on the supremacy of a nation’s written benefitting the YWCA constitution as a means of assuring Germany faced upheaval after World Thursday, October 8, peacefulness, happiness and prosperity War I. The war was lost and Kaiser for citizens. The idea was to unify the Wilhelm II was forced to abdicate the 5-9 p.m. Visit ywcatopeka.org for more citizenry under law. Kant’s concept and Hohenzollern throne. In Berlin, radical modifications to the concept by later Marxists clamored for a socialist republic information or continental thinkers bring Rechtsstaat and German sailors were engaged in contact Alison St. Clair at into rough equivalency with what a Bolshevick style mutiny at Kiel. [email protected] Anglo-Americans refer to as the rule of Monarchial power had to be replaced law. However, unlike the “rule of law,” by some form of democratic republican Topeka Chamber Rechtsstaat also encompasses the idea stability in order to stave off revolution of what is morally right. Rechtsstaat, engendered by the socialist left or by ultra- Fast Forward Social therefore, may be seen as in opposition to nationalists on the right. The compromise hosted by TBA's Obrigkeitsstaat, which describes a state solution came during a constitutional Young Lawyers Division where arbitrary power is exercised, an convention held in a city chosen for its authoritarian state. distance from the turmoil in Berlin and Thursday, October 22 Munich. The town of Weimar, not far Kansas Bar Association According to Kant, civil society from Frankfurt am Main lent its name to rests upon three things: freedom of each 5-7 p.m. Germany’s first republican constitution. societal member, the equality of each The new constitution, however, had many member with the other, and independence weaknesses. The office of president was of every societal member as a citizen. This continued on page 6 formulation assumes individual freedom ♦ Page 5 ♦ TBA BRIEFINGS OCTOBER 2015 continued from page 5 - President's Column Reich as successor to the Holy Roman Bismarckian state.” empowered to dismiss the chancellor Empire of the Middle Ages. Splinter and appoint a successor, regardless of McElligott, Rethinking the Weimar groups, both communist and nationalist, Republic the appointee’s lack of support in the largely made up of former Reich soldiers Reichstag. Unfortunately, the Weimar mustered out of the army after World Authority and Authoritarianism 1916 – Constitutional convention created the War I, began to form paramilitary groups 1936, (2014), p. 111. office of president with too much power. ostensibly for reasons of public safety. Not only could the president dismiss The chaos of the post World War I the chancellor, he could dismiss the economic instability added to the German social and economic order, the cabinet, dissolve the Reichstag and veto political and cultural unrest. In the early authoritarian views of many German legislation. Talk of a “substitute emperor” 1920s to meet cash obligations under the judges, and personal intimidation by began soon after the constitution was Treaty and to pay promised benefits, the Brown Shirts and other paramilitary adopted and indeed the power granted Weimar government simply printed more groups are the most direct explanation to the new republic’s president reflected money. However, this was at a time when for the conduct of German judges the predilection of many Germans for Germany had no ability to sell production during the Weimar period and under the monarchial rule. In essence, the Weimar abroad. Payments and currency printing Nazi regime. Radbruch’s reference to president held enough power to stop drastically limited hard currency reserves. “judicial objectivity,” within the above politics. The president could effectively The result was hyperinflation. Several quoted passage, hints at an additional interrupt the constitutional conversation years later, in 1930, the world-wide explanation. That is, the influence of within the German polity, thus vitiating depression hit Germany. judicial positivism among the German judiciary. opportunities for compromise and Finally, the success of the Weimar reconsiliation. The Constitution also Republic was impeded by the attitude of Rechtspositivismus enabled the election of splinter parties. many German civil servants. During the The possibility that strict legal Small political factions in the Reichstag Weimar period, Germans civil servants, made it difficult for any party to organize positivism, (combined with the traditional including judges, were remnants of the positivist idea of sovereign command) a workable coalition during much of the Bismarkchian imperial state. Weimar 1920s. Most importantly, the Weimar as a jurisprudential theory may have German judges were unfamiliar and influenced German judges—and the Constitution included the notorious uncomfortable with democracy. There Article 48 allowing emergency suspension German legal profession as a whole— was a preference for authority through during the Nazi Reich and contributed of several constitutional protections, sovereign control which, as indicated including habeas corpus, freedom of to the failure of German judges to above, was reflected in the president’s block Hitler’s racial, expansionist, and expression, freedom of assembly and power under the Constitution. Thus, the freedom from warrantless search. Article totalitarian policies will be the main topic old order authoritarian attitude of many in the November issue. It is certainly 48 could be invoked by the president in a German judges helps explain their benign public emergency.7 noteworthy that there was no effort attitude toward the growing influence of through the judiciary of otherwise to The Weimar Constitution with or National Socialism and Hitler’s Third challenge Hitler’s Enabling Act of 1933, without its flaws was not the sole cause Reich. One commentator states: making Der Führer’s decrees the rule of of the Nazi upheaval. There was great “Amid calls for reform of the law. resentment over the Treaty of Versailles judiciary in 1921, Gustav Radbruch, Continued in November ending World War I. Germans felt the the newly installed Social Democrat Treaty was unjust. Eastern Prussian justice minister for the Reich, territories were ceded to Poland and publically accused judges of hiding 1 As early as June 1945, Soviet dictator Joseph Treaty imposed reparation payments behind ‘judicial objectivity’ to Stalin was conspiring with German communists to created material hardship on ordinary exercise a form of justice that was undermine Western democratic influence in order Germans. Germany lost its colonies an ‘alien authoritarian body in the to bring all of Germany within the Soviet orbit. Ultimately, Stalin’s perfidy resulted in the closure and military restrictions were imposed. social people’s state.’… Indeed, a Additionally, the Versailles Treaty and of access to West Berlin. The West responded with great part of Weimar’s judiciary was the successful airlift to relieve Berlin (April 1948 the Treaty of Saint Germain forbade the unable to undertake the mental shift to May 1949). The Cold War began before the joinder of Germany and Austria into a toward democracy; instead, they Nuremberg trials were completed. greater German state which was deeply remained locked into the authoritarian resented by those German speakers and deferential atmosphere of the romantically attached to the idea of the continued on page 7

♦ Page 6 ♦ OCTOBER 2015 TBA BRIEFINGS continued from page 6 - President's Column Reichstag Fire Decree invoking Article 48 of Chancellor in 1933, Hitler caused President von 2 It was possible to hold the subsequent trials in the Weimar Constitution, Hitler completed his Hindenburg to invoke Article 48 citing the excuse Nuremberg since Bavaria was within the American power grab by causing the Reichstag to pass, of a fire at the Reichstag. The fire was blamed zone of occupation. The second set of trials, by super majority, The Enabling Act of 1933 on German communists, permitting Hitler to ban known as the United States Nuremberg Military (Ermächtigungsgesetz), effectively amending the communist delegates from the Reichstag. Tribunals, were proceedings before United States Constitution. The Enabling Act, effective for a military courts but, as with the International Trial, period of four years unless renewed by the Reichstag the subsequent American proceedings were held in (which it was, twice), empowered Hitler to enact the Nuremberg Justice Palace. There were twelve laws without involving the Reichstag. Passage of subsequent American Nuremberg trials, beginning this outrageous law was in December 1946 and lasting until April 1949. made possible because 3 An exceptional on-line resource regarding communist party the Justice Trials, including a transcript of the members were removed proceedings, may be found at http://law2.umkc. from the Reichstag by edu/faculty/projects/ftrials/nuremberg/Alstoetter. the Fire Decree and htm. the Social Democrats – many of whom refused 4 Unfortunately, Germany had a tradition of to return to the assembly “special” courts. The old Imperial Constitution to vote on the Act – were allowed for declaration of a State of Siege “deemed” to have voted Jim Reardon J.D. CFP® (Belagerungszustand) whereby certain acts because Reichstag threatening the wartime community could be tried President Hermann Member Topeka Bar Association in special courts. Such courts operated off and on Göring’s had deviously  Financial Planning after the national unification of 1871 throughout changed voting rules World War I. The concept was eventually replaced for Reichstag members.  Retirement Planning by Article 48 of the Weimar Constitution, allowing The Fire Decree and the  Asset Management for declaration of a national emergency and Enabling Act created a suspension of otherwise constitutionally provided “lawful” dictatorship  Business Retirement Solutions civil rights. which Nazis could argue was consistent  Insurance Services 5 Nazi treatment of “undesirables” is well known, with Rechtsstaat. but there was earlier mistreatment of Germany’s unwanted residents. During the monarchy, 7 Beginning in the “Preserving Capital and Making It Grow” thousands of minorities living in the German summer of 1930, the Empire were expelled. The expulsion orders were Weimar President, mainly directed at ethnic Poles but socialists, Paul von Hindenberg, Schedule a complimentary, no-obligation Jesuits, French nationalists, and "Gypsies" were was obliged to rule all removed. Most of the expulsions were the work by emergency decree consultation. of the Prussian government. 19th century romantic because the Social theories of “pan-Germanism” provided a popular Democrats’ Reichstag 785-215-8080 | www.legacykc.com foundation for the removals. The ideal of pan- majority had collapsed Germanism may be seen as a precursor to the Nazi and coalition governance 1414 SW Ashworth Place, Suite 100 | Topeka, KS 66604 ideas of untermensch and lebensraum. was becoming impossible. Less Legacy Financial Strategies, LLC is a Kansas Registered Investment Advisor. Information regarding Legacy Financial 6 After passage of the Enabling Act of 1933, than one month after Strategies, LLC is provided for informational purposes only and should not be considered investment advice or a whatever liberal promises the Weimer Constitution recommendation to buy or sell securities. having been appointed may have offered were obviated. Soon after the

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