HISTORICAL REVIEW
At a Glance
In contrast to the nineteenth century, the twentieth century – at least up until the mid-1960s – has not been a very auspicious period for constitution drafting in Switzerland.
Between 1830 and 1900, no less than seventy-five constitutional works were drafted, but only four between 1900 and 1914 and then none between 1915 and 1964, except for a “refurbishment” of the constitution of Geneva in 1958, which retained its official date of 24 May 1847.During the last century, the first cantons to undertake a constitutional revision were Nidwalden in 1965 and Obwalden in 1968. Everything changed in the 1970s, starting a period that witnessed a new wave of constitutional revisions that has now almost been completed. The creation of a new canton in 1977 (Jura) and therefore a new constitution is perhaps not irrelevant to this new trend (see below). Concerning the drafting work as such, the canton of Aargau has played a decisive role because in 1980 it was the first “large” canton to achieve a total revision of its constitution. It has since been followed in the 1980s by five cantons, and in the 1990s revisions have been achieved in four other cantons, and then another ten up to 2010.
Except for the cantons of Nidwalden, and Obwalden, and Uri, whose constitutional revisions could be qualified as formal amendments with some limited novelties, the other cantons have taken the opportunity to initiate a deep restructuring. No canton has contented itself with a constitution playing the role of a simple instrument dealing with the allocation of powers. Indeed, all the new constitutions have gone beyond “classical” organisational rules and dealt with citizens’ rights and duties, with the social character of the canton, or with the fact that each canton represents a state of law and therefore has democratic institutions.8 The French-speaking cantons seem to be more attached than the others to their old constitutions.9
1965: A Fresh Start, the New Constitution in Nidwalden
The existence of a federation offers to the constituent member states an opportunity to play the role of laboratories for democracy.
Not surprisingly, the first canton to redraft its constitution was one of the smallest in Switzerland. In 1965, the canton of Nidwalden (a former so-called half-canton, its counterpart being Obwalden) was the first one after the Second World War to achieve a complete revision of its constitution. It was the work of a wise lawyer, Eduard Amstad.10 He was elected as the new minister of justice of the canton (Justizdirektor) and then acknowledged that the canton’s structures were really too old-fashioned and out-dated. For instance, the situation at the municipal level was too intricate, since there were several kinds of municipalities, the so-called political municipalities (politische Gemeinden), church municipalities (Kirchgemeinden), school municipalities (Schulgemeinden), and even social municipalities (Armgemeinden). Their boundaries overlapped so much that they made any practical overview almost impossible. He also found that the laws were almost entirely practice-oriented, lacking abstraction and – again – a sense of an overview. To him, it was not possible to change only the laws, because doing so would not bring to the canton the level of “legal spirituality” he considered necessary for its future. Consequently the minister of justice – inspired by a future-oriented vision of his task – was convinced of the need to change the constitution.In Switzerland, cantonal constitutions have to be approved by the Federal Assembly (see below). The example of Nidwalden inspired other cantons, since for the first time after the troubled period of the Second World War the federal administration and deputies had to deal with a new cantonal constitution.11 Moreover, since in Switzerland cantonal structures are quite similar (despite large differences in the details) the discerning observations made by the Justizdirektor could also have been made in other cantons. Because it seemed easier to change the constitution in a small canton than in a large one, the only one to follow Nidwalden directly in this way was neighbouring Obwalden.
1977: The New Constitution of Jura
A few years later, discussion of the constitution of the new canton of Jura (the only new cantonal constitution written ab ovo in the history of modern Switzerland since 1848) continued to place constitutional reconstruction under the spotlight. At that time, everybody knew that the creation of a new canton would logically also mean the creation of a new constitution, contrary to what had happened in Obwalden and Nidwalden, which had both re-drafted their existing constitutions. Obviously, this new constitutional activity was widely considered as both important and exciting, and it inevitably attracted the attention of the legal and political establishment.12
It would take too long to describe the process that led to the new constitution of Jura, dated 20 March 1977, but it is clear that it played a major role in the unfolding constitutional pattern throughout the country, because this text had been drafted by its “founding fathers” as a very contemporary one in its wording and its structure (for example, in the first Preamble, the Bill of Rights, the international references). There can be no doubt that the modernity of the text inspired many constitutionalists throughout the country, even if it took some time to witness the result, because as always in Switzerland things move quite slowly.
Redrafting at the Federal Level
The end of the 1970s was also marked by discussions concerning the redrafting of the Swiss Constitution. The same winds of modernity blew over the experts’ committee (1974–77) chaired by the federal councillor Kurt Furgler. But his draft, presented in 1977 and submitted to a long process of consultation during 1978–80, was considered “too modern” and “too dangerous for federalism,” because, among other considerations, it anticipated the abolition of the historical Article 3, according to which “cantons are sovereign as long as their sovereignty is not limited by the Federal Constitution” and because it spoke of the “Swiss State.” But even though this attempt failed (in fact, a new Federal Constitution was adopted only in 1999 and entered into force on 1 January 2000, and in the interests of political feasibility it was portrayed as “just” an update of the previous one), it nonetheless helped to put the constitutional process on the political agenda. Six cantons adopted new constitutions within the next decade. Kurt Furgler himself acknowledged the relations between the amendment processes at both levels: “The spirit of initiative of the cantons drives the revision process within the Confederation and creates the means which allow us to think seriously of its restructuring.”13