Preamble and Title 1 of the Swiss Federal Constitution

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Swiss Confederation
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This article is part of the series:
Federal Constitution of 18 April 1999
Text of the Constitution
Preamble and Title 1
General Provisions
Title 2
Fundamental Rights, Civil Rights and Social Goals
Title 3
Confederation, Cantons, and Municipalities
Title 4
People and Cantons
Title 5
Federal Authorities
Title 6
Revision of the Federal Constitution and Temporal Provisions

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The preamble and the first title of the Swiss Federal Constitution of 18 April 1999 determine the general outlines of Switzerland as a democratic federal republic of 26 cantons governed by the rule of law.

Contents

[edit] Preamble

The preamble to the Constitution states, in full:

In the name of God Almighty!
We, the Swiss People and Cantons,
whereas, we are mindful of our responsibility towards creation;
resolve to renew our alliance to strengthen liberty and democracy, independence and peace in solidarity and openness towards the world;
are determined to live our diversity in unity respecting one another;
are conscious of our common achievements and our responsibility towards future generations;
and know that only those remain free who use their freedom, and that the strength of a people is measured by the welfare of the weakest of its members;
now, therefore, we adopt the following Constitution:

By opening with a solemn invocation of God, the preamble is in line with all preceding Swiss constitutional documents, back to the Federal Charter of 1291, except for the constitutions adopted under French sway in the time of the Helvetic Republic.[1]. Apart from continuing tradition, the invocatio dei is understood to be a reference to transcendental values underlying society, putting into perspective any claims to authority by the State – a merely human creation.[2]

The preamble was authored by journalist Daniel S. Miéville, and inspired in part by a 1977 draft by writer Adolf Muschg.[3] It is a symbolic summation of the will to and purpose of statehood,[4] a declaration of intent by the popular Sovereign,[5] an integrating avowal of the Swiss people's fundamental values,[6] and a binding mandate to the State's authorities.[7] It was among the most contested provisions in the course of the 1999 constitutional revision.[8]

[edit] Title 1: General Provisions

The general provisions (articles 1–6) define the characteristic traits of the Swiss state on all of its three levels of authority: federal, cantonal and municipal. They are addressed to the state authorities, programmatic in scope and not directly enforceable.[9] Notably, provisions about the symbols of the state such as the flag or anthem are left out.[10]

Article 1 constitutes the federal state, the Confederation, as consisting of the people and the 26 coëqual cantons listed in their traditional order of precedence. Article 2 enumerates the purposes of the state, which include protecting the liberty and the rights of the people, and ensuring the independence and security of the country. Like the preamble, this provision is of symbolic, historical, political and normative value.[11]

Article 3 provides that "the Cantons are sovereign insofar as their sovereignty is not limited by the Federal Constitution; they shall exercise all rights which are not transferred to the Confederation." This maintains the "bottom-up" Swiss constitutional tradition according to which both the whole Confederation and the cantons are states in their own right.[12] Much like U.S. states, the cantons are autonomous in their organisation and in their actions as states, although in principle the Confederation alone is a subject of international law.[13] As in the U.S., the powers delegated by the cantons to the Confederation are enumerated in the Constitution, although in practice federal authority is construed and exercised extensively.[14]Also, federal and cantonal competencies often overlap and interlock in complex ways.[15]

Article 4 declares German, French, Italian and Romansh to be the "national languages", highlighting the prominence of Swiss multilingualism as an integral part of the country's self-conception.[16]

Article 5 lists some of the fundamental aspects of the rule of law which the state is bound to observe, including the principles of obedience to law, proportionality, good faith and, due to pacta sunt servanda, respect for international law. The latter is customarily held to be self-executing and thus directly enforceable in Switzerland, with important exceptions.[17]

Article 6, another preamble-like provision indicative of the Swiss' perception of themselves,[18] counterbalances the "social goals" set forth in article 41 by stating that "all persons are responsible for themselves".

[edit] References

  • Bernhard Ehrenzeller, Philipp Mastronardi, Rainer J. Schweizer, Klaus A. Vallender (eds.) (2002). Die schweizerische Bundesverfassung, Kommentar. ISBN 3-905455-70-6.  (German). Cited as Ehrenzeller.
  • Non-authoritative English translation (PDF) of the Constitution, as amended until October 15 2002, provided by the Swiss federal authorities. The present encyclopedia article uses the text of this translation.

[edit] Footnotes

  1. ^ Bernhard Ehrenzeller in Ehrenzeller, Preamble, N 14.
  2. ^ Ibid, at N 17.
  3. ^ Ibid, at N 2.
  4. ^ Ibid, at N 1 and 7.
  5. ^ Ibid, at N 6.
  6. ^ Ibid, at N 8.
  7. ^ Ibid, at N 9 et seq. The extent to which the preamble is legally binding is contested; it is certainly not judiciable.
  8. ^ Ibid, at N 2.
  9. ^ Bernhard Ehrenzeller in Ehrenzeller, Preliminaries to Art. 1–6, N 2.
  10. ^ Ibid, at N 3.
  11. ^ Felix Hafner / Rainer J. Schweizer in Ehrenzeller, Art. 2 N 4.
  12. ^ Ibid, Art. 1 N 13; Art. 3 N 7. Notably, the same holds true in the United States.
  13. ^ Ibid.
  14. ^ Rainer J. Schweizer in Ehrenzeller, Art. 3 N 10.
  15. ^ Ibid, N 15 et seq.
  16. ^ Regula Kägi-Diener in Ehrenzeller, Art. 4 N 5.
  17. ^ Yvo Hangartner in Ehrenzeller, Art. 5 N 41.
  18. ^ Peter Häberle in Ehrenzeller, Art. 6 N 4.