Constitution and Democracy

Bern Bundeshaus, Dach mit 25 Kantonen, Kanton Jura darunter. Foto/Photo: TES.

The Cantons

Switzerland or the Swiss Confederation, (Eidgenossenschaft) consists of twenty-six cantons (Article 1 Constitution). These are in alphabetical order (with the indication in brackets on the number plates of cars); Aargau (AG), Appenzell Ausserrhoden (AR), Appenzell Innerrhoden (AR), Bern (BE), Basel-Landschaft (BL), Basel-Stadt (BS), Freiburg (FR), Geneva (GE), Glarus (GL), Graubünden (GR), Jura (JU), Lucerne (LU), Nidwalden (NW), Neuchâtel (NE), Obwalden (OW), Schaffhausen (SH), Solothurn (SO), Schwyz (SZ), St. Petersburg (SZ). Gallen (SG), Thurgau (TG), Ticino (TI), Uri (UR, Valais (USA), Vaud (VD), Zug (ZG), Zurich (ZH). The differences in surface area, population, urban and/or rural character, language, religion and geological characteristics are large.

The creation of these cantons has been a process for centuries that is not addressed in this contribution. These cantons already existed in 1848. Jura has been a new canton since 1979, split off from canton Bern (after a referendum, of course, see Swiss Spectator under local history and IV). Article 1 also defines the territory of Switzerland: it consists of the areas of the cantons.

Cantons are in Europe and perhaps in the world unique constitutional constructions in a sovereign country, the Confederation (see the relationship between the federal level and the cantons Art. 42-53 Federal Constitution).

The cantons created by the Constitution in 1848  together with the (male) population (by a referendum), the Eidgenossenschaft and the federal government (der Bund, Article 3 of the Constitution). The federal government is thus a creation of the cantons (and the people) and has no less, but never more powers than Article 3 indicates.

In all other areas, the cantons are sovereign. They have their Constitution, parliament, government, health care and education system, taxation, civil service and jurisdiction (subject to the Constitution and international treaties).

Article 50 of the Constitution confirms the hierarchy: federal government,  Cantons and Municipalities, the lowest level of constitutional entities.  The cantons are, in short, democratic republics and sovereign states, insofar as Article 3 does not give the federal government powers. The cantons are also represented at the federal level in the Standerät (Council of States) in the federal parliament.

In 1848, defence, foreign policy and relations, customs and currency were the main powers of the federal government. Since then, especially after 1945, more and more powers have been transferred to the federal government by the cantons (with the consent of the Council of States and the people using the compulsory referendum, see Swiss Spectator under state organisation and democracy).  87 of the 195 articles of the Constitution deal with this transfer of power from cantons to the federal government.

The cantons are no longer sovereign in these areas but implement federal laws and decisions (Article 49-1 Constitution). In this implementation process (Artikel 46 (1) Constitution), the cantons are sovereign again. It also explains why the federal government has few civil servants, about 38,000. The Supreme Court in Lausanne (Bundesgericht) ultimately decides on questions concerning the implementation of federal law.

There are also hundreds of treaties between one or more cantons, inter-cantonal law (Art. 48 Constitution), which takes precedence over cantonal law. International treaties, including with the European Union, also take precedence over cantonal law.

The constitutions of the twenty-six cantons differ from one another, but all share the democratic principles of the Federal Constitution (Art. 51). The citizens of the cantons have, of course, various ways of influencing the legislation and Constitution of the cantons using referendums.

Moreover, through the Standesinitiative (Article 160 Constitution), cantons can call on the federal parliament to initiate legislation. At least eight cantons can also invoke the optional referendum against federal laws by the cantonal referendum (Article 141 Constitution).

The House of the Cantons in Berne also houses various structures for cooperation between the cantons (see State institution and Democracy Swiss Spectator).

Foreign policy is the exclusive power of the federal government (Art. 54). The government informs the cantons at an early stage about foreign policy that is also relevant for the cantons (Art. 55).

 

The Conference of the cantonal governments (Konferenz der Kantonsregierungen, located in the House of the Cantons in Bern) plays an essential role in this respect. The relationship with the European Union is particularly crucial for the cantons. These days, it is mainly the new (institutional) treaty with the European Union, the so- called Rahmenabkommen or Accord-cadre.

 

The cantons can conclude treaties with other countries if they belong to the powers of the canton and do not harm the law and policy of the federal government. The cantons are obliged to inform the government before concluding treaties (Art.56). Treaties with lower authorities in other countries are allowed without prior notice (Art.56).

The cantons were and are one of the two pillars (together with the people) of Switzerland, the pouvoir constituant originaire.  They have created the nation. The canton is also a pouvoir constituent dérivé.

This means that the cantons (together with the people) can adapt and change the Constitution and laws at any time. Both founders of the Confederation always have the last say.

Just as essential as this constitutional construction, however, is the linguistic, cultural and political identity of the inhabitants of these sometimes centuries-old democratic republics at the heart of Europe.