Constitutional history of Switzerland
De iure, Switzerland belonged to the Holy Roman Empire until the Peace of Westphalia in 1648. De facto, however, it had been independent since 1499. The starting point of this development were various treaties of alliance between the individual communities, the later cantons. They contained agreements on mutual military aid, legal assistance and common criminal law and procedural provisions. The most famous example of such an agreement, the Bundesbrief of 1291, dates from the beginning of August 1291.
The common organ of this so-called Old Confederation was the Tagsatzung, which met regularly. Here the 13 allies could reach decisions on matters of common interest. In practice, the influence of the Tagsatzung was rather limited: on the one hand, its decisions could not be enforced, and on the other hand, they usually had to be unanimous. From the Reformation at the latest, it fell into two hostile camps.
The year 1798 marked a turning point: the Old Confederation was dissolved by the invasion of French troops. Peter Ochs drew up a constitution based on the French model; old prerogatives gave way to the new unitary state. However, the break with the past made it so difficult to implement the constitution that a new constitution was adopted on 25 May 1802, which deviated more from the model of the unitary state. However, it too was largely denied practical significance: the threat of 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 status of independent states to the 13 cantons of the old Confederation and the six newly created cantons of St. Gallen, Graubünden, Thurgau, Ticino, Aargau and Vaud. According to Art. 1, these states were merely allied with each other and discussed common matters of the alliance at the Tagsatzung.
Ten years after the enactment of the Act of Mediation, the Tagsatzung declared it invalid and renamed itself the Federal Assembly: Napoleon’s downfall had deprived the constitution of its basis. The new basis for the alliance became the Federal Treaty of 1815. It had been preceded by a division into progressive and original cantons. The Federal Treaty was again designed as a purely international agreement, which left the Confederation almost exclusively with powers in foreign and defence policy.
Differences between conservative and progressive cantons eventually led to the founding of the Sonderbund in 1845, the dissolution of which was enforced as contrary to federal law in the Sonderbund War of 1847. After the end of the Sonderbund War, a new constitution was drawn up, which was adopted first by the cantons and then by the Tagsatzung. Unlike the Federal Treaty of 1815, the Federal Constitution of the Swiss Confederation of 1848 was no longer merely a treaty under international law, but a genuine constitution.
The second half of the 19th century was marked by the opposition of two political tendencies: On the one side stood the advocates of far-reaching legal unification, especially in commercial and corporate law, and on the other the proponents of stronger direct-democratic elements. In 1871/72, therefore, two motions for a constitutional amendment were submitted to the National Council with the aim of standardizing the law, but these failed to gain acceptance either in the popular vote or among the cantons. On the basis of the failed total revision of 1872, however, a new draft constitution was introduced that seemed more acceptable to the federalist camp; after the draft was accepted by the people and the cantons, the constitution finally entered into force on 29 May 1874.
The most important partial revisions of the Constitution of 1874 were the expansion of direct democracy, the rule of law and the social state, and voting rights for women. Various attempts at a total revision proved politically unfeasible, although the Constitution had become overloaded and difficult to read due to the many revisions. It was not until 1996 that the Federal Council submitted a draft for a total revision, which finally entered into force on 1 January 2000. The Federal Council described its draft as a “revision”, which hardly contained any substantive innovations, but rather systematised and editorially revised the previous constitutional law (including the previously unwritten constitutional law arising from the case law of the Federal Supreme Court). The Federal Assembly followed this concept of “updating” for the most part, but also adopted some substantive innovations that went beyond the Federal Council’s draft, particularly in the area of the organisation of the federal authorities.
- Albert Burckhardt: Zur Entstehungsgeschichte der Mediationsverfassung. In: Basler Zeitschrift für Geschichte und Altertumskunde, vol. 3, 1904, pp. 47-58(Digitalisat)
- René Pahud de Mortanges: Swiss Legal History. An Outline. 2., supplemented and improved edition. Dike Verlag, Zurich / St. Gallen 2017, ISBN 978-3-03751-838-0.
- Karl Heinz Burmeister, Anne-Marie Dubler:Legal History. In: Historisches Lexikon der Schweiz.
- Martina Wittibschlager: Introduction to Swiss Law. C. H. Beck, Munich 2000, para. 1-17.
- Federal Office of Justice:What does the new Federal Constitution bring?December 18, 1998, accessed May 15, 2020.