The Swiss Republic

The student of politics may always look with advantage to Switzerland for the latest forms and results of democratic experiments. Federal laws, decrees, and resolutions require the concurrence of both branches of the Federal Assembly; but the process does not always end at that point. Such concurrence is not adequate in all cases for them to come into force. Article 89 of the constitution declares that “federal laws are submitted to the people for adoption or rejection on the demand of 30,000 active citizens, or eight Cantons; the same is the case with federal decrees of a general bearing, and not of an urgent character.”

This is known as the Referendum, and is supposed to be derived from the practice of the old Swiss Confederation, when the delegates of the thirteen independent states of which it was composed had to refer to their governments for confirmation the decisions of the Federal Diet. It is one of the most characteristic of Swiss institutions, and is by far the most original creation of Swiss democracy. “The Referendum looks at first sight like a French plébiscite, but no two institutions can be marked by more essential differences. The plébiscite is a revolutionary or at least abnormal proceeding. It is not preceded by debate. The form and nature of the question to be submitted to the nation are chosen and settled by the men in power, and Frenchmen are asked whether they will or will not accept a given policy. Rarely, indeed, when it has been taken, has the voting itself been either free or fair. Deliberation and discussion are the requisite conditions for rational decision. Where effective opposition is an impossibility, nominal assent is an unmeaning compliment. These essential characteristics, the lack of which deprives a French plébiscite of all moral significance, are the undoubted properties of the Swiss Referendum. It is a real appeal to the true judgment of the nation, and the appeal is free from the coercion, the unreality, and the fraud which taint or vitiate a plébiscite. The Referendum, in short, is a regular, normal, peaceful proceeding, unconnected with any revolution, any violence, or despotic coercion.”53

The Referendum is a kind of substitute for the veto; it gives no power to modify, no power to substitute; it is a pure negative. It does not enable the electors to pass laws at their own will; it is a mere veto on such legislation as does not approve itself to the electorate. It is a veto lodged in the hands of a sovereign people. A question is simplified as much as possible, and every citizen has the fullest opportunity, from the public platform, or in the columns of the press, or in private conversation, to advocate or deprecate its adoption; and the entire enfranchised portion of the community is asked to say “Aye” or “No,” as to whether the law shall become operative. It is a reference to the people’s judgment of a distinct, definite, clearly stated law. Under the Constitution of 1848, only such measures passed by the Assembly as clearly involved constitutional changes were subject to the Referendum. The jealousy of the Cantons, lest their own civil and religious privileges should be invaded, and their fear of influences, in the central government, adverse to their own sovereign rights, demanded an unrestricted reference to the popular vote. This was conceded in the revision of 1874, when the Referendum was extended to all federal laws and federal decrees, “of a general nature and not of an urgent character.” The matter now stands thus: no change can be introduced into the constitution which is not sanctioned by the vote of the Swiss people. The Federal Assembly, indeed, may of its own authority pass laws which take effect without any popular vote; but it is practically true that no enactment, important enough to excite effective opposition, can ever become a law until it has received the deliberately expressed sanction of the people. The words “decrees of a general nature and not of an urgent character” have never received even a quasi-judicial construction, either from the Federal Council or from the Federal Assembly, the two organs supervising its execution. There doubtless has been conflicting and arbitrary action taken under it. The weight of opinion, as inferred from the line of precedence, appears to be that resolutions are of a general nature, when they fix permanent and obligatory rules, either for the citizens or the Cantons, but not when they apply only to special cases. The whole detail of the exercise of the Referendum is placed by the constitution, under the regulation of the Assembly, and in June, 1874, soon after the adoption of the constitution, a federal law was passed for carrying it out. All laws and resolutions, on which the popular vote may be demanded, are to be published immediately after their passage, and copies sent to the governments of the several Cantons. Through the Cantons they are brought to the attention of the Communes. The official publication expressly calls attention to the “date of opposition,” or when the period for Referendum expires. This period is ninety days, running from the date of the publication of the law. The demand for a popular vote must be made by written petition, addressed to the Federal Council, all signatures must be autographic, and the chief officer of the Commune must attest the right of each signer to vote. If, at the expiration of the ninety days, the demand is found to have been made by 30,000 voters, the Federal Council fixes a date for taking the popular vote; this date must be at least four weeks from the date of the notice given by the Federal Council. The vote is “Yes” or “No,” and a simple majority of those voting is decisive. Unless, however, the demand for such a reference is made within the ninety days, the people are presumed to have given a tacit assent, and the bill becomes a law, and its execution ordered by the Federal Council.

Under this peculiar institution, a condition exists, in which the sovereignty of the people is no longer a speculative doctrine, but a living reality; it makes a very direct and thorough democracy, and its application has proven neither ineffective nor unduly obstructive. Since the adoption of the Referendum, in 1874, there have been vetoed, among other laws passed by the Assembly, the following: “Modification of the right of voting,” “Bank-notes law,” “Indemnities payable to the Confederation by citizens dispensed from military service,” “Political rights,” “A law respecting certain epidemics,” “Appointment of a federal secretary of education,” “Creation of a special secretary in the federal department of justice and police,” “Granting an annual salary of 10,000 francs for a secretary to the Swiss legation at Washington,” “Exempting native commercial travellers from taxation which those of other countries had not to pay,” “Power to Federal Council to remove criminal cases from a cantonal to the Federal Tribunal, when there is reason to suspect the fairness of the former.” The only important laws sanctioned under the Referendum, during the same period, are the “Marriage law,” “Factories law,” “Subsidies to Alpine Railways,” and a general “Banking law.” Also three modifications of the federal constitution respecting “Patent law,” “Capital punishment,” and “Spirituous liquor monopoly.”

At the time of the introduction of the general Referendum, one of Switzerland’s ablest public men declared that it would be “the greatest trial to which a republic was ever subjected.” It was apprehended by some that it would invite, on the part of the populace, interference with a prudent and independent direction of affairs. Others held it to be scarcely consistent with the true theory of representation; that it is of the very essence of representation that the representative body should stand in the place of the people, possessing their confidence, exercising their plenary powers, speaking with their voice and acting with their full consent; otherwise the legislative function is wanting, and it becomes a mere deliberative council. There is, however, nothing to show that the Swiss Assembly from this cause lacks weight or respectability; it compares favorably enough with the law-making body in any country. It is the primary doctrine of the Swiss Confederation, that the sovereignty of the people must be absolute, whether exercised personally, as in some of the rural Cantons, or through their representatives and the Referendum. This doctrine has been maintained in Swiss institutions from the earliest time until the present day. So elaborate a scheme for the passing of federal laws cannot be without inconvenience; but it is a fundamental principle of the nation, and at once satisfies the democratic traditions of the people and the natural jealousies of the several Cantons. It is a true check and safeguard in making the legislative power directly responsible to public opinion, and in giving the nation an easy and simple opportunity of marking that opinion; of testifying their disavowal and rejection. If it, as alleged, produces a diminution of the feeling of responsibility in the representative, that possible disadvantage is outweighed by the educative effect which it exercises on the great bulk of the citizens. It tends to give them a keener interest in political questions. Through it the citizen becomes conscious of his individual influence, and that his vote contributes appreciably both to the maintenance and direction of the laws under which he lives, and he is impressed with the necessity of a careful discharge of his political rights.

To the confusion and dismay of the strongest advocates of the Referendum, the measures which they most prized, when so put, have been negatived. Contrary to all expectations, laws of the highest importance, some of them openly framed for popularity, have been vetoed by the people after they have been adopted by the federal and cantonal legislatures. This result is sufficiently intelligible. It is possible, by agitation and exhortation, to produce in the mind of the average citizen a vague impression that he desires a particular change, but when the agitation has settled down, when the subject has been threshed out, when the law is before him with all its detail, he is sure to find in it something that is likely to disturb his habits, his ideas, his prejudice, or his interest, and so he votes, “No.” Thus it serves as a guarantee against precipitate legislation in matters of vital concern to the community; and is considered thoroughly successful by those who wish that there should be as little legislation as possible. In short, the Swiss experience with this popular veto on legislation is evidence that, under certain circumstances, it produces good effects. It does not hurry on a law, nor facilitate any legislation; it merely forms an additional safeguard against the hastiness or violence of party; it is a check on popular impatience. It secures the laws against any change which the sovereign people do not deliberately approve. The object of such safeguard is not to thwart the wishes of the democracy, but to insure that a temporary or factitious majority shall not override the will of the people. It tends to produce permanence in the tenure of office; it is a distinct recognition of the elementary but important principle, that in matters of legislation patriotic citizens ought to distinguish between measures and men; and this distinction Swiss voters have shown themselves fully capable of drawing. It is an institution which admirably fits a system of popular government. It is the only check on the predominance of party which is at the same time democratic and conservative, as it has demonstrated. It is democratic, for it appeals to and protects the sovereignty of the people; it is conservative, for it balances the weight of the nation’s common sense against the violence of partisanship and the fanaticism of over-zealous reformers.

The history of the Referendum in Switzerland confirms the fact that, as a rule, the people are not favorable to legislation; and that the necessity must be very great and the good ends aimed at very manifest, to withstand a direct consultation of the constituencies. The ancient republics hardly legislated at all. Their democratic energy was expended upon war, diplomacy, and justice; putting nearly insuperable obstacles in the way of a change of law. From fundamental and permanent causes springs this legislative infertility in republics. Changes are at once conservative and progressive; conservative because progressive, progressive because conservative. The Referendum reserves to the people, as the old Swiss expression ran, höchste und grösste Gewalt, the highest and greatest power. The foremost statesman in Switzerland, a member at present of the Federal Council,54 calls it l’essai le plus grandiose qu’une République ait jamais tenté, the grandest attempt ever made by a republic. The constitutional provision that when a certain number of voters demand a particular measure, or require a further sanction for a particular enactment, it shall be put to the vote of the whole country, certainly presents a considerable future before democratically governed societies. Peradventure the United States may realize the prophecy made by Mr. Labouchère in the House of Commons, in 1882, that the people, tired of the deluge of debate, would some day substitute for it the direct consultation of the constituencies.

The Referendum is practically in use in the United States for constitutional amendments, but so far American publicists seem to regard it quite out of place for ordinary laws, and allege that its introduction would obscure the distinction on which the whole American system rests. For this reason the growing tendency of the people, in the several States, to take a direct part in legislation, even by means of constitutional amendments, is regarded by the same school of thinkers as a danger, which, if it goes too far, will be a serious injury to the American theory of government.

The principle behind the Referendum is as old as the Swiss nation, the word coming from the usages of the old Federal Diets, in which the delegates did not decide matters themselves, but voted ad referendum, and submitted their actions to the home governments. The power to veto an ordinary law made by representatives was established for the first time in modern days, in 1831, in the Canton of St. Gallen. It was a compromise between the party which wanted to establish pure democracy, and the party of representative government. It is, however, only the same old Swiss voter of centuries ago, telling his member of the Diet to conclude nothing important without his consent. The demand of 50,000 electors to amend the constitution, or to repeal or to modify an existing law, is called a “popular initiative,” and, when made, the Federal Assembly must submit the question to a vote of the people and the Canton. In every cantonal constitution, except Freiburg, the right of the people to have all important legislation subjected in some form to popular confirmation or rejection is recognized. While general assemblies of the people in the Cantons to make the laws fell into desuetude, popular franchise and complete freedom of election were not enough to satisfy the democratic sensibilities of the Swiss. They were still jealous of the plenary powers of their delegates, and insisted that their deliberations when formulated into laws, should be referred to the sovereign people. Previous to the French revolution, the governments of the different Cantons had largely fallen into the hands of a limited number of aristocratic families. The laboring classes were crushed under enormous burdens by the nobility in the rural districts, and by the rich bourgeoisie in the cities. Artificial barriers were placed about the freedom of commerce and labor in the interest of these more powerful classes. The period of reaction following the Napoleonic era was unfavorable to the development of popular institutions. Since the cantonal revolutions of 1830 there has been a general return to the principle known as the Referendum; and after the federal Constitution of 1848, by which the constitution of a Canton could only be revised on the demand of an absolute majority of the citizens, the policy of extending the principles of the Referendum to its fullest limits rapidly grew in favor. There are two forms of Referendum existing in the Cantons, compulsory and optional; the one requiring the reference of every law passed by the Great Council before it acquires validity; and in the other, a discretionary power of reference is reserved to the people. The first is regarded as the more practical and satisfactory; the chief objection to the latter being the agitation occasioned in procuring the necessary signatures, producing excitement, diverting the thoughts of voters from the real question at issue, and thus giving an undue bias to public opinion, and a character of partisanship to the resulting Referendum.

The number of signatures required in the optional Referendum varies, according to the size of the Canton, from five hundred to one thousand voters, and the time within which it must be made, usually thirty days from the passage of the law and its official publication. The compulsory Referendum exists in the seven Cantons of Zurich, Bern, Solothurn, Grisons, Aargau, Thurgau, and the Valais, and in the rural half-Canton of Basel. In Schwyz and Vaud both forms obtain. In Zurich a popular vote must be taken upon all changes in the constitution, new laws, concordats, and the appropriation of an amount exceeding 250,000 francs, or an annual expenditure exceeding 20,000 francs. The power of the cantonal council in Zurich is further limited by the initiative. Any voter, if supported by one-third of the members present at its next sitting, or any 5000 voters, may demand the passing, alteration or abolition of a law, or of a decision of the council. The optional Referendum exists in the seven Cantons of Luzern, Zug, Schaffhausen, St. Gallen, Ticino, Neuchâtel, Geneva, and the urban portion of Basel. Generally speaking, laws, concordats, and sometimes resolutions of cantonal councils are submitted to optional Referendum. It exists for financial matters, in different gradations in other Cantons, from 500,000 francs in Bern to 50,000 francs in Schwyz. The initiative as to revision of the constitution prevails in all of the Cantons upon certain conditions, and the demand of voters varying in number from 1500 to 5000; with the exception of Bern and Valais, where there is no initiative. As before stated, Freiburg is now the only Canton in which the sovereignty of the people is not thus directly exercised; all the others, with the exception of those where there is still a Landsgemeinde, possess either a compulsory or an optional Referendum; and in two instances both. A few Cantons have introduced an imperative initiative, by petition from a fixed number of voters, demanding action upon a certain matter by the cantonal council; whereupon the council must take a vote upon it, and then submit it to a popular vote, even if the action of the council upon it has been unfavorable.

This combination of representative institutions with the direct exercise of popular sovereignty is well calculated to promote the welfare of the people, occupying the peculiar position in which the Swiss are placed. The discipline of self-government in the Commune, and the training afforded by an effective system of popular education, have qualified them for the practice of direct democracy. With the Swiss legislature standing above the executive and judiciary, we might call Switzerland a parliamentary republic, if it were not for another power, which stands not only in the final theory, but even in the daily practice, of the constitution, above the legislature. This power is the people themselves. The Referendum shows clearly where the seat of sovereignty in Switzerland is located.