PRELIMINARY REMARKS

What is a constitution?³ The definition encompasses at least three elements. From a material point of view, a constitution is a group of rules that organize and structure the state; this notion is consubstantial with the state.

Consequently, the constitution contains a political component that is more or less national and more or less open towards the world and whose political vision may be more or less liberal, socialist, dictatorial, or reactionary and whose symbol may be national (or regional) independence, ethnic unity, peace, or permanent revolution. But if constitutions are national in their scope, they are not supposed to be only national: they may also be regional. Federations can grant to their constituent units a certain constitutional sovereignty. Not surprisingly, the level of sovereignty available varies among federations.⁴ In Australia, Brazil, arguably Canada, Germany, Mexico, the Russian Federation, South Africa, Switzerland, and the United States of America, the constituent political communities have, or can have, their own constitutions. Most of them have substantial constitutional autonomy and broad legal discretion to establish their own governments, political institutions, governmental processes, and public policies, subject only to certain limits and prohibitions set forth in the federal constitutions.

This is not the case in Switzerland, where, since the first constitution of 1848, the Federal Constitution has required all twenty-six cantons to have their own constitutions (Article 6). But the cantons have certainly not kept them unchanged since then: beginning in the 1960s, they have tended to give themselves new ones in order to remain in tune with the latest trends in constitutional law. In Switzerland, new cantonal constitutions are drafted every four to five years, relatively high speed given the traditional slowness of the law-making process in the country (it took more than forty years to draft a new Federal Constitution). Therefore, the sub-national constitutional debate has been a significant element of political and legal discussions in the Swiss cantons for many years.

Nevertheless, this topic remains largely unexplored from a scientific point of view. The on-line library of the Institute for Federalism in Fribourg (Switzerland) contains more than 113,000 entries devoted to federalism, decentralisation, and the protection of minorities worldwide. But the researcher interested in “sub-national constitutions” will find that the material is scarce.⁵ It seems that there is not a great deal of interest in this topic either in the scholarly community or among practitioners elsewhere.

But the subject of sub-national constitutions has finally begun to focus specialists’ attention. As a matter of fact, the International Association of Constitutional Law (IACL) devoted a workshop to this topic at its 2007 Congress in Athens.⁶ Among the questions addressed were (1) how such constitutions differ from federal constitutions and each other, (2) how federal constitutions define the space allocated for sub-national constitutions (constitutional competency) and methods of policing the boundaries of federal and sub-national power, and (3) whether and why component units have or have not utilised their constitutional competency. Other challenging topics include analysis, comparison, and the preliminary evaluation of methods of replacing, revising, or amending sub-national constitutions.

In the rest of this chapter I will present the key concerns that have been discussed in the Swiss cantons and synthesize the major debates and discussions.⁷ What is clear from the beginning is that cantonal constitutions fully correspond to the definition and the tasks generally attributed to constitutions usually understood in the larger sense.