The Consitution of the Cantons
28 June 2021
The 26 cantons have a powerful constitutional and political position in the Swiss state system. From a European perspective, they are even unique structures dating back centuries. This article discusses the constitution of the cantons.
The great politician and entrepreneur Alfred Escher (1819-1882) articulated in 1848 what is still the foundation of the federal and democratic system today:
“Der schöne Baum unseres neuen Bundes, der seine schützenden Zweige über das ganze Vaterland ausbreitet, hat zu seinen Wurzeln die Kantone. Würden wir diese Wurzeln verkümmern und absterben lassen, so wäre damit auch dem Baum der sichere Untergang bereitet. Die Kantone sind die Säulen, auf denen das ganze Bundesgebäude ruht” (J. Jung, Alfred Eschers Thronreden, Zürich 2021).
The cantons and the citizens (das Schweizervolk, le peuple suisse) are the founders of the Confederation (Schweizerische Eidgenossenschaft/ la Confédération) and the Federal Constitution (FC). This Constitution gives the federal government (der Bund or la Fédération) and the cantons (and communes) their own place.
The relationship between the federal government and the cantons is dealt with extensively in the FC.
The principle is stated in article 3 FC: the cantons are sovereign unless powers have been transferred or delegated to the federal government.
This sovereignty only refers to the relationship with the federal government. There is no sovereignty in the sense of public international law.
The FC contains many articles that deal with this relationship, among others, the supremacy of federal laws but implementation by the cantons, co- and cooperation between federal government and cantons, the cantons as bodies of the federal government (e.g. the Council of States), the territorial inviolability of the cantons and the role of the People and other issues.
Art. 51 FC. requires each canton to have a democratic Constitution that meets the standards and conditions of the FC (and international treaties).
The cantonal Constitution
All cantons have a constitution. Any amendment requires the approval of the Federal Parliament and the citizens of the cantons concerned who are entitled to vote (obligatorisches Referendum (obligatory referendum). In addition, the federal court (Bundesgericht/tribunal fédéral) can, in some instances, judge the cantonal constitution.
Besides these conditions, the cantons are free to draw up the Constitution (Verfassungsautonomie) and organise the government, the judiciary, legislative and executive powers, citizenship and voting rights and to create and to organise the municipalities, districts and other public-law organisations. It is a central element of the Swiss federal system.
In addition, the cantons are sovereign in determining and financing their budgets (Finanzautonomie). The cantons levy direct and indirect taxes (as far as not transferred to the federal level) to finance their tasks and powers, n important aspect of federalism.
This sovereignty does not prevent the federal government from supporting cantons financially, and there are cantons of net contributors and cantons of net recipients.
Republic, State, Member
The cantons’ particular constitutional and political character is also reflected in the first articles of their constitutions.
Most cantons explicitly mention the dual function of (sovereign) state and member, sovereign republic and canton of the Confederation.
The wording varies. However, the broad outlines are: ‘ein freiheitlicher, demokratischer und sozialer Rechtsstaat’, ‘ein Stand der Schweizerischen Eidgenossenschaft’, ‘Une République et l’un des Etats de la Confédération suisse’, ‘ein souveräner Stand’, ‘ein souveränes Bundesmitglied’, ‘eine demokratische Republik’ or, for example, ‘un canton souverain de la Confédération suisse’.
The texts emphasise the multiple functions of the cantons: an autonomous or independent member of the Confederation, on the one hand, cooperating in many areas or being a body (for example, the Ständerat/Conseil d’Etats) of the federal government on the other hand).
The citizens (das Volk, le Peuple) are the essential body of any constitution. Thanks to direct democracy, the citizen always has the last word (obligatory referendum) or initiative (various types of optional referendum).
In addition, the Constitution can also be amended at the cantonal level by a People’s Initiative (Volksinitiative). The cantons regulate the right to vote and citizenship by federal law.
Separation of powers
The organs of the canton must comply with the Trias Politica or the separation of powers. It is explicitly stated in most Constitutions and implicitly in others. The FC also (implicitly) stipulates this requirement.
The legislature, the parliament, is directly elected by the citizens. The cantons are usually divided into constituencies.
There are two election systems: proportional representation (number of seats based on votes cast for a party (Proporzsystem)) and absolute majority per candidate (Majorzsystem).
The following article will discuss the electoral systems and the role of the Supreme federal court (Bundesgericht/Conseil fédéral).
Officially, the parliament has only (unpaid) part-time politicians (Milizsystem). Systems of remunerations and reimbursements do exist. During the last decades, the number of full-time and professional politicians has increased, however.
The number of seats differs per canton. The Constitution regulates the functioning and powers.
The executive, the government, is also directly elected by the citizens. It is unique in Europe. The canton counts as a single constituency, and the absolute majority system prevails in all cantons, except for Ticino (proportional system).
The government counts between 5 and 7 members. Like the federal government, the cantonal government is based on the principle of collegiality (Kollegialprinzip).
The members speak to the outside world with one voice. The government reflects fast always the distribution of seats in the parliament.
The system of the absolute majority per candidate creates a direct link between voters and the government. Individuals and not (their) parties have a prominent role.
This dichotomy of proportional representation (Proporzsystem) in parliament and the absolute majority (Majorzsystem) in government is sometimes called the ‘Schweizer Wunderwaffe’, and rightly so.
The Constitution also stipulates the organisation of the judiciary, which must be independent (FC).
The cantons organise their criminal-, civil- and administrative law courts in two instances (first instance and appeal). Municipalities do not have courts. The FC stipulates in detail the procedures and conditions.
The people elect the judges, and sometimes they are elected by parliament and appeal courts for a fixed term (4, 6 or 10 years).
The Supreme federal court (Bundesgericht, Conseil fédéral), with seats in Lausanne, Bellinzona and St. Gallen, is the highest court of appeal in some cases.
In an obligatory or optional referendum at the national level, a ‘double yes’ vote is required for a positive result. An absolute majority at the national level and a majority of the cantons (Ständemehr) based on the vote of the citizens per canton (whereby six cantons have one vote, the other two, a total of 46) are required.
Historical development and conclusion
The vital role of the Constitution of the cantons is also shown by their historical development, especially after 1815, and their influence on the federal Constitution in 1848, 1874 and 1891 and the introduction of direct democracy.
This period includes a Restoration (Restauration) 1815-1830, a return to the Ancien Régime, old constitutions and cantons from before 1798, and modernisation (1830-1845), also called the Regeneration and the democratic movements for direct democracy in the cantons after 1848.
The cantons were the first to include systems of direct democracy in their constitutions. The FC followed in 1874 and 1891. The FC of 1848 had only introduced the obligatory referendum.
The cantonal Constitution lost significance after 1945 because more and more powers were transferred to the federal level.
The House of the Cantons (Haus der Kantone/Maison des Cantons) in Bern, inter-cantonal consultation, inter-cantonal treaties and inter-cantonal law and even international treaties of cantons show that the cantons are still very much alive nowadays.
There is also (still) a relatively large involvement of civil society organisations and citizens, for example, in cantonal and national referendums.
Recent referendums, for example, had an absolute majority at the national level ut were nonetheless rejected due to the absence of a majority of the cantons (Ständemehr).
(Source: A. Auer, Staatsrecht der Schweizerischen Kantone, Bern, 2016).