A Short History of the Constitution
11 December 2018
The old Confederation (Eidgenossenschaft) of thirteen cantons or Orte (situation 1513) did not yet have a Constitution, but was a loose confederation of cantons. Its members were: Appenzeller, Basel, Bern, Freiburg, Glarus, Lucerne, Schaffhausen, Schwyz, Solothurn, Unterwalden, Uri, Zug and Zurich.
The Confederation 1291-1515
The Confederation or Eidgenossenschaft was based on mutual treaties concluded between two or more cantons in a process over centuries.
The first treaties between what would only be called cantons three centuries later date back to the thirteenth century, even before the official date of foundation in 1291.
The Eidgenossenschaft has been a process of state-building bottom up from the very beginning. More and more cities or Orte joined until 1513.
An important moment was the conquest of Aargau in 1415. The cantons decided to rule the conquered and subject area (Untertanengebiet) together (Gemeine Herrschaft). The Tagsatzung, the general assembly of the cantons, was created for this purpose.
Thurgau was conquered in 1460. It was another subjected area for the Eidgenossenschaft. The Burgundian wars (1474-1477), the expansion into the Italian territories (1512) and the conquest of Vaud (1536) led to the joint administration of more territories.
The Swabian war (Schwabenkrieg, Schweizerkrieg or Engadinerkrieg) of 1499 expanded the Eidgenossenschaft to include five new members. In addition, more and more regions and cities joined as allies (Verbündete ) or connected areas (zugewandte Orte).
The Freistaat St. Gallen, Graubünden, Valais, Geneva, Neuchàtel, but also several cities in Germany and France (e.g. Rottweil, Besançon, Mulhouse, Strasbourg, Colmar).
Until 1515 and the defeat at Marignano, the Eidgenossenschaft was a military superpower with no political unity or Constitution in Central Europe.
However, the Eidgenossenschaft even survived the Reformation. This is an indication of the strong bond that existed between the cantons despite the religious strife and other (economic) disputes.
The Eidgenossenschaft without a Constitution survived mainly due to the local constitutions, (shared) interests, and wisdom of the members.
In Zurich, for example, the reformer Huldrych Zwingli (1484-1531) was not immediately burned but was heard by the city council. He even managed to convince them, and Zurich became a Protestant city in 1525.
The two (Catholic and Protestant) Appenzellers were created after a vote in the Landsgemeinde (Appenzeller Ausserrhoden, Protestant) and the parish of the church (Appenzeller Innerrhoden, Catholic) in 1597.
Protestant Berne remained an ally of Catholic Solothurn and Freiburg.
The Eidgenossenchaft functioned without a Constitution until 1798. From 1798-1803 the Helvetic Republic was a unitary state with a Constitution based on the French model and principles of unity, legal equality and fraternity.
The subjected areas became cantons (Thurgau, Aargau, Vaud, Tessin) or were lost (Valtellina). However, the cantons no longer had independence in the unitary state, having become merely administrative units.
The Swiss cantons did not fit into the straitjacket of a unitary state. On 19 February 1803, the new (French) Constitution (the Mediation Act) created a new Confederation of nineteen independent cantons (with the new cantons of St. Gallen and Graubünden). The federal government (Der Bund) had hardly any powers, however, except for foreign policy (under French supervision).
After Napoleon’s defeat, the new Eidgenossenschaft and the Constitution of the twenty-two cantons (with Geneva, Neuchâtel and Valais as new cantons) came into being on 7 August 1815. The Bundesvertrag was the constitutional fundament. The Bund, the federal level, still had hardly any powers. The cantons remained sovereign with their constitutions.
The years 1815-1848 represent a crucial period. The old (oligarchic) structures were back in power in most cantons. However, the ideals of popular sovereignty, (direct) democracy and referendums enjoyed the support of the liberal bourgeoisie.
This caused tensions between and within the cantons, between federalists (confederation) and unionists (unitary state), old structures (ancien régime) and radical-liberal groups, and between Catholic and Protestant cantons.
In this complicated situation, the Constitution of 1815 could not be reformed and a short civil war (Sonderbundskrieg) was the climax in 1847.
This escalation did lead to the Constitution of 1848 (after approval by a referendum). The Constitution was amended one hundred and forty times until the year 2000.
Every amendment must be submitted to the People in the form of a mandatory referendum, whether it concerns the first major revision in 1874 (including the optional referendum), the revision of 1891 (including the People’s Initiative), the introduction of the voting system of proportionality (1918), women’s suffrage (1971), the new canton of Jura (1979) or the major revision of 1999 (which, after the referendum, came into force on 1 January 2000).
Most adaptations are related to the transfer of new powers to the federal level (der Bund) because of an increasing number of governmental tasks (e.g. with respect to the environment, social security, immigration, transport).
The principles of the Constitution of 1848 have not changed. Switzerland is a confederal, decentralised democratic state. The citizens always have the final say at federal, cantonal and municipal levels, and thus control the political parties and their networks.
The Eidgenossenschaft and the Constitution are a centuries-old bottom-up project on behalf of the cantons and the People. Switzerland boasts the maximum as an alliance of four languages and cultures.