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 Federal Constitution). This article also defines the territory of Switzerland: it consists of the areas of the cantons.

The cantons

In alphabetical order (with their license plate indications in brackets) these are; Aargau (AG), Appenzell Ausserrhoden (AR), Appenzell Innerrhoden (AI), Bern (BE), Basel-Landschaft (BL), Basel-Stadt (BS), Fribourg (FR), Geneva (GE), Glarus (GL), Grisons/Graubünden (GR), Jura (JU), Lucerne (LU), Neuchâtel (NE), Nidwalden (NW), Obwalden (OW), Schaffhausen (SH), Schwyz (SZ), Solothurn (SO), St. Gall (SG), Thurgau (TG), Ticino (TI), Uri (UR), Valais (VS), Vaud (VD), Zug (ZG), Zürich (ZH).

There are immense differences between the cantons’ surface areas, population, urban and/or rural character, language, religion and geological characteristics. Just as essential as this constitutional construction is the linguistic, cultural and political identity of the inhabitants of these sometimes centuries-old republics.

History

The creation of today’s cantons has been an ongoing process over centuries. As such, it is not fully covered in this contribution. These cantons already existed in 1848, although in 1979, Jura split off from the canton of Bern to form a new canton in its own right.

The system of cantons as constitutional constructions and democratic sovereign republics in a sovereign country is unique in Europe and possibly in the world.

Powers

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

In all other fields, the cantons are sovereign. Each has its own Constitution, parliament, government, health care and education system, taxation, civil service and jurisdiction (subject to the Federal Constitution and international treaties).

Article 50 of the Constitution confirms the national hierarchy: the Federal government, the Cantons and the Municipalities (the lowest level of constitutional entities).

The cantons are, in short, democratic republics and sovereign states, insofar as Article 3 does not delegate powers to the federal government.

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, but especially after 1945, powers have been increasingly transferred to the federal government by the cantons (with the consent of the Council of States and the people (by a compulsory referendum). The transfer of power from cantons to the federal government is mentioned under Article 87 of the Constitution’s 195 Articles.

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.

This 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.

Cantonal and international treaties

There are hundreds of treaties between two or more cantons: inter-cantonal law (Art. 48 Constitution) thus  takes precedence over cantonal law.

International treaties, including treaties with the European Union, also take precedence over cantonal law.

Foreign policy is an exclusive domain 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 process. The relationship with the European Union — nowadays mainly the new (institutional) treaty with the European Union (the so-called Rahmenabkommen or accord-cadre) — is particularly crucial.

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).

Constitutions

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 various ways of influencing the legislation and Constitution of the cantons using referendums.

Moreover, through the Standesinitiative (Article 160 Constitution), cantons can ask the federal parliament to initiate legislation.

At least eight cantons can also invoke the optional referendum against federal laws (the cantonal referendum, Article 141 Constitution).

The cantons were and remain one of the two pillars (together with the people) of Switzerland, embodying the originating constituting power  (le  pouvoir constituant originaire). They have created the nation. The cantons are also imbued with a derived constituent power (le pouvoir constituent dérivé).

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