The Bill of Rights and Hitler

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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2 Responses

  1. A.J. Sutter says:

    The German constitution under Hitler (i.e., the written document) was by no means immune to the influence of the Bill of Rights. Here are some excerpts:

    Article 118 Every German is entitled, within the bounds set by general law, to express his opinion freely in word, writing, print, image or otherwise. No job contract may obstruct him in the exercise of this right; nobody may put him at a disadvantage if he makes use of this right. There is no censorship; in case of the cinema, other regulations may be established by law. Also in order to combat trashy and obscene literature, as well as for the protection of the youth in public exhibitions and performances legal measures are permissible.

    Article 128 All citizens, without discrimination, are to be admitted, according to their talents and accomplishments, to public office. …

    Article 135 All Reich inhabitants enjoy full freedom of liberty and conscience. Undisturbed practice of religion is guaranteed by the constitution and is placed under the protection of the state. General state laws are not affected hereby.

    Article 136 Civil and civic rights and obligations are neither conditioned nor limited by the exercise of freedom of religion. The exercise of civil or civic rights, the admittance to public offices are independent of religious confession. Nobody is obliged to profess his religious confession publicly. …

    Article 137 There is no state church. Freedom to form religious communities is guaranteed. …

    Of course, these are from the Weimar Constitution of 1919, for which Hitler deserves no credit; and which he simply ignored, instead of bothering to amend.

    Several of the religion-related articles from the Weimar constitution were deemed strong enough to have been expressly incorporated into the post-war Grundgesetz (Basic Law), and remain there to this day. And the second sentence of Art. 118 extends the guarantee of free speech to a domain not protected even in the US (much less here in Japan). I’m not entirely certain about the impact of Federal Constitutional Court jurisprudence on this point, but the free speech rights under the Basic Law (Art. 5) don’t appear to include this one, either.

  2. Shag from Brookline says:

    This post brings to mind Mel Brooks’ “The Producers” and “Springtime for Hitler.” That was our own First Amendment in action. And before that there was Charlie Chaplin’s “The Great Dictator.”

    More seriously, there was FDR’s “Second Bill of Rights” speech shortly before he died that he might have implemented, at least in part, if he had survived through his 4th term. We’re getting there.