Helvetia, enthroned in the centre, is crowned with a laurel wreath as she brandishes the new Federal Constitution. Instead of the usual allegories, she is flanked on both sides by citizens depicted in military uniform and in civilian dress, embodying the people as the supreme political authority. Swiss National Museum

The Confederation's policy of concordance

The Swiss Confederation has had a constitution since 1848. Yet the history of this legal document, which is still in force today, dates back much further. It would be almost impossible to imagine the federal state in its current form without this historical prelude.

René Roca

René Roca has a PhD in history and is a secondary school teacher and Director of the Research Institute for Direct Democracy fidd.ch.

For Switzerland, the period from 1798 to 1848, i.e. from the Helvetic Republic to the emergence of the federal state, was marked by political upheavals, culminating in the Sonderbund War of 1847. Like the two opposing alliances of 1832 that preceded it – the Siebnerkonkordat grouping of liberal cantons and Sarnerbund union of conservative cantons ‒ the Sonderbund, a defensive alliance formed in 1845, contravened the Federal Treaty of 1815. However, its foundation is understandable in light of the flagrant breaches of the law such as the dissolution of the monasteries in 1841 and the two occasions on which armed radicals marched on the city of Lucerne in 1844/45, not to mention the Diet's failure to act. The Sonderbund (and its stance on the Jesuit issue, for example) played into the hands of certain liberal-radicals who believed that Switzerland could not be transformed without recourse to violence. They therefore waged a propaganda campaign that pushed the conflict ever closer to civil war. For their part, the Sonderbund's supporters managed to isolate themselves by accentuating the conflict's confessional aspects to such an extent that the Protestant conservatives and others who had sympathised with the Sonderbund's political concerns now turned their backs on it or remained neutral.

The Sonderbund War of 1847 was the last armed conflict on Swiss soil. — **The *Sonderbund* War of 1847 was the last armed conflict on Swiss soil.** Swiss National Museum

The Sonderbund 's actions remained doomed to failure: the majority of inhabitants in the alliance's cantons were opposed to an offensive campaign being waged beyond cantonal borders, its military leadership was inadequate and there was a lack of coordinated agreement between its members. It is crucial to examine the events leading up to the Sonderbund, and not least the decisive role they played in the emergence of the later federal state. However, this aspect is not usually given sufficient weight. Swiss historian Oskar Vasella (1904–1966) explored the period in which the federal state was established in a number of publications, highlighting the role played by the Catholic conservatives. He contends that it is precisely when assessing Catholic conservatism that "greater freedom in historical thinking" is needed in order to gain a more truthful picture of the history leading up to the formation of the federal state. In this respect, we will begin by looking at two important historical developments in Switzerland in greater detail: Switzerland's neutrality and the cooperative principle, both of which were constitutive elements of the policy of concordance. We will then consider the attempts to revise the Confederation's Federal Treaty during the Regeneration period, before finally discussing the founding fathers' efforts to form a federal state, which were heavily influenced by the will to integrate.

Policy of concordance

There is a vibrant tradition of seeking concordance, or balance, throughout Swiss history, dating back to long before the establishment of the federal state. In this context, it is worth taking a look at the history of Swiss neutrality. Neutrality developed gradually as the Swiss Confederation grew in size from 1291 onwards, with domestic and foreign policy considerations consistently playing an important role. When, for example, Basel joined the confederation of cantons in 1501, this new member was obliged to pledge to ‘sit still’, in other words remain neutral, and mediate in the event of conflicts between the other cantons. This requirement, designed to achieve peaceful coexistence and constructive interaction, was based on the experience of the Acht Alten Orte, the eight 'Old Cantons'. ‘Sitting still’ and mediating, domestic policy measures intended to ensure peaceful coexistence, became more and more important in relation to foreign policy over time, ultimately leading to the first official declaration of neutrality by the Federal Diet in 1674. However, the Confederation remained entangled in numerous alliances, leading to disaccord and power-political interests that repeatedly got in the way of peaceful development. Neither was the mercenary system conducive to a foreign policy based on trust. Nevertheless, Switzerland's declared neutrality increasingly brought about the desired unity, and this multilingual country divided along denominational lines was able to develop relatively independently following its formal recognition by the international community as a sovereign state in the Peace of Westphalia (1648). The Confederation subsequently managed to stay outside the European wars of faith, conquest and succession in the early modern era. The concept of armed neutrality began to take shape during the Thirty Years' War (1618–1648), when the Defensionale of Wil (1647) created the first set of Confederation-wide military regulations. Switzerland developed its own arbitration procedures for peaceful dispute resolution. Initially intended as domestic policy measures, they later also gave rise to protecting power mandates on behalf of other countries.

List of troop contingents in accordance with the Defensionale of Wil, 1647. — **List of troop contingents in accordance with the *Defensionale of Wil*, 1647.** Swiss National Museum

It is not possible to discuss the policy of concordance without likewise mentioning Switzerland's cooperative tradition. Numerous areas of society in the Confederation at that time were organised in a wide variety of cooperative forms. Frequent reference was made to the three ‘selves’ – self-help, self-responsibility and self-determination. Many of the problems in the conflicts that kept recurring could normally be resolved peacefully within a cooperative setting, thus strengthening the bonum commune. Vasella places particular emphasis here on the Federal Diet, which played an important role in holding the country together in the early modern period: «The establishment and nature of the Federal Diet [are] characteristic of the cooperative spirit and the belief in concordance. […] It played a decisive role in strengthening the belief in concordance. […] Its negotiations reflect the constant struggle to reconcile many different interests. It fostered the sense of sharing a common bond like no other institution before it.» Following the difficult periods of the Helvetic Republic (1798–1803) and the Mediation (1803–1815), which had nevertheless also generated significant momentum, Switzerland was once more able to develop more independently and to integrate the tradition of concordance, agreement and balance in its policies to a greater extent. It is possible to describe the cantons as ‘laboratories of liberty’ as early as the Restoration period (1815–1830). In due course, this too contributed to the development of democracy at the communal and cantonal level. These processes led to more direct democracy, but they also helped many valuable experiences to be gained and prevented disagreements from degenerating into political violence.

Attempts to revise the Federal Treaty, and the Sonderbund War

At the start of the Regeneration (1830–1848), liberal-radical movements established themselves in 11 cantons in 1830/31 and, in a peaceful revolutionary act, adopted new cantonal constitutions. These constitutions were imbued with the principle of popular sovereignty, the division of power between the political institutions, and a democratic principle that guaranteed regular elections. In addition, the liberal-radical faction was soon pushing for the Federal Treaty to be revised in the spirit of the new cantonal constitutions, based partly on an appeal made by Kasimir Pfyffer, an eminent citizen of Lucerne. However, revising the Federal Treaty faced a high political hurdle. As the document did not contain any provisions concerning its own revision, a heated debate erupted in the Diet as to whether a unanimous vote or a simple majority was required to change it.

**Kasimir Pfyffer on a visiting card portrait, circa 1850.** Swiss National Museum

The Canton of Thurgau submitted the official petition for revision to the Diet in 1831. The majority of the Diet, specifically 13½ cantons out of 22, agreed in 1832 that such a revision should go ahead. It entrusted a commission chaired by Gallus Jakob Baumgartner (1797–1869) with the task of drawing up the revised constitution. The draft that emerged and was submitted in 1832 is often referred to as the ‘Rossi Plan’ after Geneva's envoy to the Diet and the commission's rapporteur Pellegrino Rossi (1787–1848), or simply as the Bundesurkunde, a 'deed of federation'. The draft comprised 120 articles providing for various fundamental rights and a modern state in federal form. The Federal Diet was to be transformed into a parliament, and there were plans to create a Federal Council with five members, presided over by a Landammann as head of state of the Confederation. Among the economic measures, the free movement of persons and goods was to apply in Switzerland and a single currency was to be introduced. The draft was no doubt too ambitious overall, as considerable changes were made to it when the Diet met in May 1833. Following its approval by ten cantons, Rossi's draft was rejected in a popular referendum in Lucerne, the presiding canton that was also a candidate to become the seat of federal government, in July 1833, thus effectively scuppering the project. The opponents of the Rossi Plan, mainly Catholic and Protestant conservatives, and federalists, had won the day with their insistence that any amendment to the Federal Treaty would require unanimity. A second attempt at revision in 1833–1835 also met with failure. It must be noted that the Rossi Plan as a whole, along with three other non-official draft constitutions, represents an important milestone in the Swiss Confederation's constitutional history. However, although a start had been made, progress was far too slow for the liberal-radicals, who therefore continued to push the revolution forward, even if this meant violating the law on occasion and eventually led to retaliatory measures by the conservatives and to the Sonderbund war.

**Conservative caricature lampooning the revision of the Federal Treaty of 1815.** Swiss National Museum

In the estimation of US historian Joachim Remak, the actual Sonderbund War was not really a civil war, but merely a ‘quarrel between fellow Swiss’, especially when compared with the American Civil War. While the role played by General Dufour was undeniably important, it should not be exaggerated unnecessarily. Based on past experiences, the mood of the population and the quest for balance and agreement were of greater consequence. It was this mood that the Diet aimed to accommodate in a proclamation made shortly before the first acts of war took place. Its words were addressed specifically to the people of the Sonderbund cantons: "The Federal Diet does not seek to oppress members of the Confederation, to destroy cantonal sovereignty, to violently overthrow existing federal institutions, to form a unity government, to violate your rights and freedoms, to threaten your religion." The policy of concordance was consolidated at the end of the short Sonderbund War when the new Federal Constitution was drawn up. Consequently, this process and the subsequent introduction of the Federal Constitution was no ‘Zero Hour’ as argued by Rolf Holenstein in his book Stunde Null. That aside, the private protocols and secret reports featured in the book make it a treasure trove of history in relation to the emergence of the Swiss federal state, and one which closes a number of gaps in the research. What is important, however, is the view that the Federal Constitution as a whole and the federal state are the result of a longue durée, or an extended period of development. In this context, Vasella states that "the spirit of wanting to understand one another, the determination to get along" has been significant in Swiss history. He goes on to say: "It took a long historical process to achieve [this] ethical basis."

**General Dufour on a print dating from 1862.** Swiss National Museum

The genius of the Federal Constitution

The Federal Constitution of 1848 was the first to be adopted by the citizens of Switzerland entitled to vote at that time. The commission set up by the Diet to revise the Federal Treaty consisted of 23 members of the individual cantonal governments (including liberal-radical members from the former Sonderbund cantons), who were pragmatically minded, willing to compromise and placed little value on theoretical concepts. In a chapter devoted to the part played by the intellectuals, Holenstein impressively highlights the ideas and references from intellectual history that were fundamental to the fathers of the constitution. Just five days after the commission sat for the first time in February 1848, revolution broke out in Paris. It quickly spread to Europe's authoritarian monarchies, which only a few weeks earlier had been threatening to intervene should the Federal Treaty be amended. This development significantly weakened the external anti-liberal forces. The 23-strong commission seized the opportunity presented to it. Forgoing further improvements to the old Federal Treaty, it created the Federal Constitution in 51 days.

The subsequent formation of the federal state should be seen as a genuine revolution. As previously mentioned, the Federal Treaty did not contain any provisions regarding its own revision and therefore required all the parties, i.e. the cantons, to be in agreement on its amendment. The fathers of the constitution swept all this aside by issuing transitional provisions that created new legal foundations. These formed the basis for all the steps that followed, including the cantonal referendums and the subsequent decision by the Diet. Unanimity was no longer required. The Diet thus approved the new constitution in June 1848. Referendums were held in the cantons in July and August, with 15½ in favour and 6½ against. All the cantons of central Switzerland, plus Ticino and Valais said 'No'. Uri, Obwalden and Nidwalden also rejected the proposal at their Landsgemeinde cantonal assemblies. Lucerne said 'Yes', although that was due to a special procedure in which abstentions were counted as votes in favour. The former Sonderbund canton of Fribourg also voted in favour by virtue of a decision of the cantonal parliament. None of these events can exactly be described as a good omen for the new Federal Constitution, and hence for concordance and the integration of the losing side. However, it must be stressed that the defeated Catholic conservative camp was not opposed to the project per se and that most of the opposing cantons accepted the majority principle through gritted teeth and agreed to be bound by the Constitution, not least because some of their concerns had been incorporated into it. On 12 September 1848, the Diet thus declared the Federal Constitution adopted and in force as the basic law of the Confederation.

In the second half of the 19th century, this made Switzerland an island of democratic republicanism in a sea of European monarchies. The Federal Constitution can certainly be seen as a synthesis of existing knowledge and experience considering that the Swiss had already been adhering to the principle of concordance for quite some time, as shown by the history of neutrality and the cooperative approach.

Integrating the losers

For a long time following the formation of the federal state, history tended to be written in a way that attributed all of the state's achievements, including the subsequent development of its direct democratic instruments, to the liberal-radical victors of the Sonderbund War. Yet, despite the Sonderbund's defeat, some of its demands did find their way into the draft of the new Federal Constitution of 1848. The victorious majority took account of the concerns of those it had defeated. As mentioned above, the proclamation issued to the inhabitants of the Sonderbund cantons by the Diet prior to the first acts of war had already pointed in this direction. The victors paid particular attention to the wish for cantonal sovereignty, a desire that was also expressed by moderate liberals. Neither must the ban on the Jesuits be allowed to conceal the clear federalist accents set by the federal state in giving the cantons power over the schools and churches, setting up the Council of States and introducing the requirement that a majority of the cantons must vote in favour of a proposal for it to be accepted. The Federal Constitution enshrined the principle of nationhood while allowing the cantons to retain their sovereignty. The Confederation and its member states fulfilled their mandate by means of bilateral cooperation based on subsidiarity. Thus, the Sonderbund indirectly helped to make a centralist solution more difficult and to prevent further revolutionary upheavals as called for by the radicals.

More of: Federal Constitution Modern Age Politics Article

Further posts

The human right to be cold

Debjani Bhattacharyya 13.07.2023 The climate-induced melting of Switzerland’s glaciers is not just an environmental issue, the legal implications are also huge. National sovereignty, the cornerstone of fundamental constitutional rights, is suddenly on thin ice (pardon the pun). Climate change impacts a whole host of international human rights. This raises the question of how we in Switzerland can guarantee the next global generation’s right to be cold irrespective of national borders.

The Morteratsch Glacier tongue receded by 2,185 m from 1900 to 2010. It has since almost entirely disappeared.

Privacy – a contested fundamental right

Martin Lengwiler 13.04.2023 The Federal Constitution guarantees the right to privacy. Yet, time and again, this fundamental right has been restricted – in state security, the education system and taxation.

A scene from the consumer TV programme ‘Kassensturz’ on the insurers’ central database, 17.9.1984.

Switzerland’s rocky road to religious freedom

Josef Lang 23.03.2023 The Federal Constitution only became secular in 1874 when it granted religious freedom to the Jewish minority. In the current version, there are still two exemption clauses concerning Muslims.

Extract from a commemorative plaque on the constitutional revision of 1874. It was during this revision that freedom of religion and conscience for all was enshrined in the Constitution – including for the Jewish minority.