Constitutional history of Switzerland

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Historical representation of the Federal Constitution of 1848

De iure , Switzerland belonged to the Holy Roman Empire until the Peace of Westphalia in 1648 . In fact, it had been independent since 1499. The starting point for this development were various alliance agreements between the individual communities, the later cantons . They contained agreements on mutual military aid, mutual legal assistance and common criminal law and procedural provisions. The most famous example of such an agreement, the Federal Letter of 1291 , dates back to the beginning of August 1291.

The common organ of this so-called Old Confederation was the regular assembly . Here the 13 alliance partners were able to take decisions on issues of mutual interest. In practice, the influence of the Diet was rather small: On the one hand, its resolutions could not be enforced by force, on the other hand, they usually had to be passed unanimously. By the Reformation at the latest , it split into two hostile camps.

Title page of the mediation act of 1803

The year 1798 marked a turning point: the old Confederation was dissolved by the invasion of French troops. Peter Ochs worked out a constitution based on the French model, old privileges gave way to the new unitary state. The break with the past made the enforcement of the constitution so difficult that on May 25, 1802 a new constitution was passed, which deviated more strongly from the model of the unitary state. However, its practical significance was largely denied: The looming civil war between Unitarians and federalists led to mediation by Napoleon in 1803 .

The mediation constitution left Geneva , Valais and the Principality of Neuchâtel to France and granted the 13 cantons of the old Confederation and the six newly created cantons of St. Gallen , Graubünden , Thurgau , Ticino , Aargau and Vaud the status of independent states. According to Art. 1, these were merely allied with one another and discussed common matters of the alliance in the agenda .

Ten years after the act of mediation was passed, the Diet declared it ineffective and renamed itself the Federal Assembly : Napoleon's downfall had deprived the constitution of its foundation. The new basis of the alliance was the Federal Treaty in 1815 . It was preceded by the formation of a camp in progressive and original cantons. The federal treaty was again designed as a purely international agreement, which left the federal government almost exclusively with powers in foreign and defense policy.

Differences between conservative and progressive cantons finally led to the establishment of the Sonderbund in 1845 , the dissolution of which was enforced in the Sonderbund War of 1847 as illegal . After the end of the Sonderbund War, a new constitution was drawn up, which was first adopted by the cantons and then by the Diet. Unlike the Federal Treaty of 1815, the Federal Constitution of the Swiss Confederation of 1848 was no longer just a treaty under international law, but a real constitution.

Commemorative sheet for the constitution of 1874

The second half of the 19th century was marked by the contrast between two political directions: on the one hand, there were advocates of extensive legal standardization, especially in commercial and corporate law, on the other, the representatives of stronger direct democratic elements . With the aim of harmonizing the law, two motions for a constitutional amendment were therefore received in the National Council in 1871/72 , but they were not able to prevail either in the referendum or in the cantons. On its basis, however, a new draft constitution was tabled, which seemed more acceptable to the federalist camp; After the draft was accepted by the people and the cantons, the constitution finally came into force on May 29, 1874.

The most important partial revisions of the constitution of 1874 were the expansion of direct democracy, the constitutional and welfare state and the right to vote for women . Various approaches to a total revision turned out to be politically unenforceable, although the constitution had become overloaded and difficult to read because of the many revisions. It was not until 1996 that the Federal Council submitted a draft total revision , which finally came into force on January 1, 2000. The Federal Council described its draft as "update", which contained hardly any content-related innovations, but systematized and revised the previous constitutional law (including the previously unwritten constitutional law resulting from the case law of the Federal Supreme Court). The Federal Assembly largely followed this concept of a “follow-up”, but also incorporated some content-related innovations that went beyond the draft of the Federal Council, particularly in the area of ​​the organization of the federal authorities.

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  1. ↑ a b c d e f g Martina Wittibschlager : Introduction to Swiss law . CH Beck, Munich 2000, Rn. 1-17.
  2. ↑ Federal Office of Justice: What will the new Federal Constitution bring? December 18, 1998, accessed May 15, 2020 .