#1. Genesis

N. 1 The preamble of the Federal Constitution of 1999 essentially adopts the wording of the preamble of the Federal Constitution of 1874, supplemented by additional programmatic elements. The invocatio Dei («In the name of Almighty God!») was retained from historical tradition, although its deletion was discussed during the constitutional reform of 1995-1999 (BBl 1997 I 1, 140-141).

N. 2 The Message on the new Federal Constitution of 20 November 1996 states that the preamble «expresses the fundamental values and objectives of the Confederation» without itself creating justiciable norms (BBl 1997 I 1, 140). The constitutional legislator consciously decided to retain the traditional formula, supplemented by modern state objectives such as responsibility towards future generations and the promotion of freedom and democracy.

#2. Systematic Classification

N. 3 The preamble stands outside the numbered articles of the Federal Constitution and forms its programmatic introduction. It is systematically to be distinguished from the subsequent constitutional provisions, in particular from:

• → Art. 2 BV (purpose article), which stipulates concrete state objectives
• → Art. 3 BV (cantons), which establishes the federalist basic order
• → Art. 5 BV (principles of activity in the state governed by the rule of law), which contains justiciable legal principles

N. 4 Unlike fundamental rights (→ Art. 7-36 BV) and social objectives (→ Art. 41 BV), the preamble establishes neither subjective rights nor objective state obligations. It has declaratory character and serves primarily for the constitutional legislator's self-reassurance.

#3. Normative Content

N. 5 The preamble contains the following elements:

• The invocatio Dei as a traditional invocation formula
• The self-designation as «Swiss People and Cantons»
• Responsibility towards creation and future generations
• The commitment to freedom, democracy, independence and peace
• The will for mutual consideration and unity in diversity
• Openness towards the world

N. 6 According to prevailing doctrine (Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, 10th ed. 2020, N 99; Ehrenzeller, in: St. Galler Kommentar BV, 4th ed. 2023, Preamble N 8-10), these are programmatic statements without normative binding effect. The preamble contains value commitments and objectives that express the «spirit of the Constitution».

#4. Legal Consequences

N. 7 The preamble does not unfold immediate legal consequences. Neither subjective rights nor claims can be derived from it. The Federal Supreme Court has confirmed the lack of justiciability of preambles in constant practice, even if explicit decisions on the BV preamble are lacking (cf. on the methodological significance of preambles BGE 140 II 112 E. 3.6.2).

N. 8 As an interpretive aid, the preamble can be drawn upon in the interpretation of other constitutional provisions. However, this interpretive function remains limited to borderline cases in which the normative text is ambiguous (Rhinow/Schefer/Uebersax, Verfassungsrecht, 3rd ed. 2016, N 358).

#5. Points of Contention

N. 9 The invocatio Dei was controversial in the constitutional reform. While proponents (Giusep Nay, Amtl. Bull. SR 1998, 486) emphasised historical tradition and cultural identity, opponents (Gian-Reto Plattner, Amtl. Bull. SR 1998, 487) criticised the religious formula as incompatible with the ideological neutrality of the state.

N. 10 In doctrine, the legal significance of the preamble is largely uncontested. Müller/Schefer (Grundrechte, 4th ed. 2008, 48) and Biaggini (BV-Kommentar, 2nd ed. 2017, Preamble N 3) consistently emphasise the purely programmatic character. Isolated voices (Schweizer, in: St. Galler Kommentar BV, 3rd ed. 2014, Preamble N 15) allow the preamble a certain orientation function for constitutional interpretation without, however, attributing normative quality to it.

#6. Practical Notes

N. 11 For legal practice, the preamble is meaningless. It can be invoked neither as an independent basis for claims nor as a limitation on state action. References to the preamble in legal writings have at most rhetorical function.

N. 12 In constitutional interpretation, primary reliance should be placed on the systematic and teleological method. The preamble can at most be drawn upon supplementarily to confirm a result already obtained from other interpretive elements. It does not have independent normative force.

#Legal Significance of the Preamble

Case law on the preamble to the Federal Constitution (Art. 0 Cst.) is extremely sparse, as the preamble has no direct legal effect and is therefore rarely invoked in court proceedings. The few available decisions deal primarily with the general principles of constitutional interpretation and the role of preambles in the interpretation of international treaties.

#Constitutional Interpretation and Methodological Principles

Judgment 1B_511/2021 of 27 December 2021 para. 2.1

Principles of statutory interpretation for constitutional provisions. The Federal Supreme Court confirms the methodological principles of constitutional interpretation, which are also relevant for the interpretation of the preamble.

«Grounds for such an assumption may be provided by the legislative history of the provision (historical), its purpose (teleological) or the context with other provisions (systematic), particularly when grammatical interpretation leads to a result that the legislature cannot have intended.»

BGE 140 II 112 para. 3.6.2 of 31 January 2014

Significance of preambles in the interpretation of international treaties. The Federal Supreme Court acknowledges the interpretative relevance of preambles in the context of the Free Movement Agreement.

The judgment shows by way of example how preambles can be used in treaty interpretation, which mutatis mutandis also applies to the preamble to the Federal Constitution.

«The contracting parties were indeed "resolved", according to the preamble, "to implement" freedom of movement on the basis of the provisions applicable in the EC. This was a declaration of intent regarding "harmonious development of their relations" (preamble).»

#Historical Constitutional Development

BGE 104 Ia 88 of 8 March 1978

Constitutional-historical development of fundamental rights. The decision deals with the historical development of freedom of expression and shows how constitutional-historical considerations flow into legal reasoning.

The case law appreciates the historical development of the Federal Constitution from 1848 through 1874 to the current Constitution of 1999 as an aid to interpretation for individual constitutional provisions.

#Absence of Direct Application

The research confirms that the preamble to the Federal Constitution plays virtually no direct role in Federal Supreme Court case law. It is not invoked either as an independent source of law or as a direct basis for legal claims. This corresponds to the prevailing doctrine according to which preambles have a programmatic character but contain no justiciable legal norms.

The few mentions of preambles in case law are limited to their role as an aid to interpretation in the interpretation of other constitutional provisions or international treaties, whereby the practical relevance remains low even here.