Gregory A. Fossedal, Direct Democracy in Switzerland, 2002.
Part 3
Institutions5
ConstitutionAlbert Blaustein, the great scholar of world constitutions, once devised a simple and intriguing method for assessing them at a glance. According to Blaustein's rule of thumb, the shorter a constitution, the better it probably is. Corrupted polities tend to cram such documents full of sham "rights," complex rules, and pompous pronouncements. The constitutions of such countries, like the tombs of the self-important Egyptian kings, often run to 50,000 words. By contrast, the constitutions of the United States, Germany, and other successful republics tend to be shorter and more limited. Powers are distributed and denied. Popular liberties are stated or implied, and then followed. Naturally there are caveats and exceptions, but this is a very fast way to form a general impression of a country's fundamental law and government.
The Swiss constitution of the late twentieth century didn't perform terribly on this "Blaustein test," but at some 15,000 words, or about sixty-five pages of normal-sized type, it didn't achieve the economy we normally attribute to the Swiss.1 Unlike a recent Asian constitution, it contains no elaborate listing of the rights of tenants in high-rise buildings. Nor, as distinct from the constitution of Cuba, are the people guaranteed progressive and inspired leadership; and the civil liberties of left-handed persons, generously shielded in Nigeria, are not pledged protection. The Swiss constitution in place until January 2000, however, did "encourage the growing of table-fruit," and provide for a tax of "1.9 percent on radio and television activities of a noncommercial character." It also compelled the civil authorities to "make sure that every deceased person can have a decent burial," and, importantly, established "the total tax rate for beer" at "the level of 31 December 1970."
The picture suggested of a highly encumbered document, though, is misleading. The constitution's core sections, such as those outlining the powers of and limits on the different branches and providing for election to the various federal offices, occupied little more than 10 percent of the document. This portion of the old Swiss constitution, in about forty brief articles, comprised perhaps 2,000 words and was comparable in brevity and clarity to the American Constitution -- on which it is partly modeled. The articles referenced above, on everything from the prohibition of absinthe to federal authority to regulate "the slaughter at abbatoirs and other methods of killing animals," came under the headings "general provisions" and "transitional provisions." These made up some ninety or one-hundred longer articles and took up more than 85 percent of the document.
Such provisions were enacted not as part of the basic governing structure when the constitution was written in 1848 and revised (but with many key provisions left unchanged) in 1874 and 1999. Rather, they became part of Switzerland's fundamental law by public referendum over the last 125 years. Under a quirk in the system, citizens are allowed to "initiate" a constitutional change by collecting 100,000 signatures, leading to a vote of the people by referendum. (To take effect, the referendum must achieve a double majority of the popular vote as a whole, and within the individual twenty-three cantons.) By contrast, the right to pass on regular laws is limited to challenging certain laws already passed by parliament in a referendum -- mere laws can only be initiated by the parliament, but can be challenged with as few as 50,000 signatures. The Swiss also enjoy a right to petition, and to have their petition answered by officials. The result is that matters of policy that would normally be mere statutes are often the object to constitutional amendment. It is sometimes easier to change the constitution by this manner, despite the large majorities required, than it would be to persuade a bare majority of legislators to enact the same change. That this is the case -- and probably would be in many other democracies -- may itself be instructive about the state of our politics.
The length of the constitution, and its forays into seeming arcana, is also an indication of the extent to which the Swiss people have been able to shape the fundamental law of their own land. The accretion, while troublesome (the Swiss have discussed making initiative possible for federal laws, and likely will in the coming years) is also suggestive of the openness of the system to the action of citizens as individuals and groups. The working of the initiative and referendum process is of sufficient importance to merit its own examination later in the book. It must, however, be discussed in considering the working of the whole as well, given its importance to the whole operating spirit of the regime and its institutions.
Naturally, the amendment process is only one of many important revisions in the constitution. It was not even a major controversy when the basic ideology of the current constitution took shape in 1848, following the civil war; initiative and referendum at the national level came about late in the nineteenth century, during and following the rewriting of the constitution in 1874.
As if to improve their performance under the Blaustein Test, or perhaps simply out of a desire to consolidate and perfect, the country drafted a revision of its constitution in the late 1990s, which took effect early in the year 2000. The new constitution, in the assessment of its framers and advocates, made no significant changes over the old. Certainly, on a structural level, this appeared to be so. The new constitution, at about forty-five pages of single-spaced type, achieved the same ends as the older, longer version. It retained some of the penchant for unusually specific provisions seen often in the old, such as a passage providing the Confederation may "encourage the variety and quality of cinematographic works offered" (article 71) or a clause "on avoiding abusive notices of termination" (article 109). For the most part, however, these provisions were moved into a final section of "transitory provisions" that will drop off the basic document as soon as they are enacted in the form of laws per se (Title 6, Chapter 2 -- article 191). "These provisions," as former President Dr. Kurt Furgler noted in an interview, "are more properly matters of regular legislation. The Swiss had always recognized this, and, being Swiss, have a desire to revise their fundamental law so as to put things in their proper place."
More controversial was a statement of "Social Goals" contained in article 41. Among the notable provisions, "every person shall benefit from necessary health care." As well, "every person looking for housing shall find... appropriate housing at reasonable conditions." On the other hand, "every person capable of working shall sustain himself or herself through working under fair and adequate conditions." Although this section of the constitution makes clear that this listing of goals implies no "direct subjective right" to receive them from the state, the wary Swiss, particularly in some of the central cantons, wondered whether the elaboration of social goals, albeit brief, might lead to subtle changes in their political fabric.
Indeed, the debate over the new constitution, in the words of Bernhard Ehrenzeller, "focused largely not on any of the positive provisions, but on the document's preamble and purpose sections." Ehrenzeller, a professor at the University of St. Gallen and adviser to former President Raoul Kohler, was part of a team of scholars that worked with Kohler to craft the new constitution and win support for it. One offending section of the preamble called for "solidarity and openness towards the world." This might seem an unobjectionable phrase, particularly since it follows a commitment to "liberty, democracy, [and] independence." To some Swiss, however, it seemed an erosion of Switzerland's tradition of neutrality, and its reticence toward involvement in international organizations that might compromise neutrality. Did the new phrase imply Switzerland's eventual entry into the United Nations, or even the European Union? "We certainly didn't intend to insert such a meaning," Ehrenzeller said, "and I don't think it's the right reading of the constitution. But, it became a controversy." Regardless of this original intent of the founders, a lively opposition formed in the weeks leading up to the vote on the new constitution. Swiss in nine cantons voted against the new design. Nevertheless, in April of 1999, the Swiss voted by a 59-41 percent margin to approve the work of the new framers.
The most striking aspect of the Swiss design, of course, is its use of direct democracy. Almost equally different, however, compared to other constitutions of the world, is the new constitution's federalism -- the extent to which rights and prerogatives are delegated to the cantons and communities. Indeed, to the Swiss, such matters are not merely "delegated," but "reserved," having been retained by the local units of government all along.
Federalism was central to the framers during the constitutional sessions of 1848. The issue was how to create a stronger federal core without driving the independent-minded cantons to another civil war. Their first remedy was to follow the American Constitution, with its blend of states' rights and new federal powers. The opening paragraphs mention each of the "sovereign cantons." These are sovereign wherever there is no explicit federal power to make laws. Yet the constitution also speaks in the name of "the people" of each of the cantons. It proclaims citizens of one canton citizens of Switzerland -- and declares that citizens of Switzerland have those rights in any of the cantons. This incorporative language was retained and strengthened over the years. The federal constitution also contains limits on what the cantons may do even within their own constitutions. For instance, confederation's guarantee of cantonal constitutions is conditioned on the assumption that "they have been accepted by the people and can be amended whenever the majority of citizens so demand."
The confederation wisely did not place a large number of such limits on the cantons, but this one is significant and, indeed, unusually sweeping among Western democracies. The United States, for example, proclaims the federal Constitution the supreme law of the land. It does not, however, specify that state constitutions must be amendable -- still less, that they must be amendable by the people. Many U.S. states, particularly in the South and the East, have no such provision, and indeed, some have no referendum or initiative process altogether. That this is one of the more stringent impositions on the cantons reveals something of the Swiss faith in popular government. Like the U.S. Constitution's Tenth Amendment, the Swiss constitution reserves all powers not specifically delegated to the confederation for its states or cantons. The Swiss have followed this tenet more strictly than the Americans. The cantons remain the largest unit of government to this day, whether measured by revenues or employees.
The Swiss cantons enjoy rights not common among the local levels of government in many Western countries. They can establish religious institutions and support them with tax money, and provide religious teaching in the public schools. There is freedom of choice for the individual worshipper, protected by the constitution. There is, however, no "wall of separation" between church and state of the kind so often spoken of in other Western democracies. The remedy for a Roman Catholic living in Bern, or a Protestant or Jew living in Schwyz, is to attend his local independent church, or move to another canton. In practice, since all the major faiths are now recognized, and the school instruction and religious content is not aggressive, this is not a major issue. It is, however, a measure of the power of the cantons that they still enjoy such autonomy. The cantons also maintain control of roads and bridges, except for a few federal roads. And, unusually, each canton establishes its own system of criminal and civil court procedure. Court decisions and police actions taken in one canton are binding upon another. The cantonal courts enjoy significant discretion and exhibit a wide variety of methods.
Most powers reserved to the cantons were, in fact, merely reserved -- not "given" to them in the federal constitution, because they had been enjoyed all along. As long as these were not, in fact, reserved to the federal government, they remain the province of the sovereign cantons. Among these are many nonenumerated powers over the police, public works, and education and the schools. It is difficult for many modern Americans and Europeans to grasp the idea of dual sovereignty inherent in this. Although we have traditions and rhetoric of federalism, the practice of federalism was significantly eroded over the nineteenth and twentieth centuries. In the United States, as well, the use of "states' rights" arguments by the Southern states before the Civil War, and again in the 1950s and 1960s, to oppose some civil rights measures, has somewhat discredited the very idea of federalism. This is not to say that state government has disappeared in the United States; still less so in Germany. Few take seriously, however, the idea that these units of government are truly sovereign. In Switzerland, this concept is still held and felt strongly, particularly by Swiss over the age of fifty.
The constitution gives the federal government oversight of the army. "The army is the province of federal legislation." The cantons may continue to administer elements of their own armed forces, but they do so "under the supervision" of the confederation. No canton may maintain a standing army of more than 300 persons -- nor may the confederation itself. The army is another of those Swiss institutions that requires a separate examination. We cannot understand the working of the constitution, or the balance of its design, without at least referencing it here, for it is the most national and perhaps the most nationalizing institution the Swiss have devised.
In a very general way, the operations of Swiss federalism may be summarized as follows: The framers, in 1848 and 1874, did not provide the federal government with a large number of powers. (These have been added to over the years, however, through the referendum process.) The federal government at the center has only a few powers in number -- but of those, several are highly compelling and strategic. Among these are its power to decide disputes between the cantons, its power over the currency, the unitary power over the military and over decisions of war and peace, and the sole power to negotiate treaties and nearly undivided power to approve or reject them. Many more powers, in number, were retained by the cantons, and are today.
Alexis de Tocqueville anticipated this when he advised his colleagues in the French Parliament what to watch for in the unfolding constitutional debates. The Swiss federal government, Tocqueville argued, did not need to provide most or all of the goods, services, and functions of government in order to be effective. But it needed to provide some of them. In particular, it needed to provide some of them itself, in a direct intercourse with the people -- instead of always acting through, and therefore somewhat at the discretion of, the cantons. The Swiss federal constitution set up several such arrangements in 1848, to which more have been added. The creation of the Swiss franc, and abolition of cantonal currencies, was certainly one. Money is a "bottom line" in so many economic and even social transactions, and sound money provides a real service to the people and the economy. The frequent elections set up by the federal constitution and its requirement of amendability for the cantonal constitutions provides another unifying source, a sociological one.
The need to prevent a too-powerful federal government was also met through indirect means. The Swiss, like the Americans, divided the powers of the federal government between branches and then, for good measure, divided the branches somewhat within themselves. Thus the executive branch in effect has not one president, but seven council members, each of whom serves a term of one year as president in rotation. Legislation must pass both houses of parliament to become law, but it needs no further signature from the executive. This check, the "veto," was thought to be unnecessary: it is carried out by the people through initiative and referendum. Similarly, while judges are certainly respected in Switzerland -- perhaps more so than in the United States and Britain -- they are not appointed for life. The judiciary's independence is guaranteed, first by the good faith of the legislature, and second -- this factor must always be kept in mind -- by the ability of the people to overturn capricious or vindictive legislation directed at the judiciary, were such legislation to pass.
Here again we see a distinctive element in the Swiss system. No less than other democracies, the Swiss have checks and balances. A larger share of them, however, tend to involve popular checks -- restraints imposed by the people on political elites, rather than by one group of elites on another. The difference in spirit can be seen if we compare various provisions in the Swiss constitution with those of other democracies, as in Table 5.1 on the next page.
The Swiss regard their constitution somewhat differently than the people in other Western democracies. Some of these differences appear to be advantageous, others not so.
On the one hand, in political and even everyday discussions, it is treated with a little less reverence than in the United States. If the constitution is a holy oracle or fixed tablet in the United States, France, or Germany, in Switzerland it is more of a home medical guide. The Swiss are more used to taking the thing off the shelf and using it -- possibly doing damage, sometimes doing good, and in any case, having it out for use. It is treated less like an icon, and more like a tool.
On the other hand, there is a certain friendly familiarity that results from such experience. This is particularly so given the somewhat greater ease of changing the constitution in Switzerland and, more importantly, the fact that the way one changes it involves the common people to a greater extent, both at the front end and the back. In the United States, since the passage of the initial ten amendments in the Bill of Rights, the Constitution has been altered some one dozen times over two centuries and only once since World War II. The typical Swiss voter of age fifty has seen about twenty to twenty-five constitutional changes in his lifetime, and as an adult has voted on an average of more than one per year. Perhaps he even volunteered time to help support the passage of one or the defeat of another. In any case, if he is a typical Swiss, he was reading regular newspaper articles about the merits of this change or that change. In this process, implicitly, he was engaged in a kind of rolling review of his country's fundamental law. This process makes the constitution alive and the people its owners, in amore tangible way than in nearly any other country. To say this is not to comment on the wisdom or lack of wisdom of the measures themselves. It is an observation about the process and its impact upon the sociology, if you will, of the Swiss constitution as against others.
The Swiss constitution, for all its flaws, is less an object for handling only by an opaque priesthood of attorneys and officials, and somewhat more of a living document and a family member. If familiarity breeds a certain rough contempt, the overall impact appears to be a healthy, balanced respect and a greater sense of pride and participation.
Note 1. During the work on this book, Switzerland passed a new constitution, consolidating the language of the old into a more terse document, but kept the same structure. We can expect this new document to be subject to some of the same accretions and alternations through the process of initiative and referendum. Hence, references to length and complexity refer to the constitution in place for most of the twentieth century, though observations about substantive provisions apply equally to the new constitution that came into force in 1999. The fact that Switzerland's whole framework of government can be so smoothly altered every few years, and even consolidated into a whole new draft, is evidence of the kind of flexibility and populism that are the Swiss constitution's defining characteristics. The fact that many of its provisions, popularly enacted, were for a time not "written" through this process does not substantially alter the character of the document.