The People and the Cantons of Zurich, Bern, Lucerne, Uri, Schwyz, Obwalden and Nidwalden, Glarus, Zug, Fribourg, Solothurn, Basel Stadt and Basel Landschaft, Schaffhausen, Appenzell Ausserrhoden and Appenzell Innerrhoden, St Gallen, Graubünden, Aargau, Thurgau, Ticino, Vaud, Valais, Neuchâtel, Geneva, and Jura form the Swiss Confederation.
Art. 1 FC — Overview
Art. 1 FC is the first and most fundamental article of the Federal Constitution. It establishes that the Swiss people together with the 26 cantons listed by name form the Swiss Confederation. This provision defines the structure of the Swiss federal state.
The 26 cantons are enumerated in historical order of their accession to the Confederation. Zurich, Bern and Lucerne are among the oldest members, while Jura joined as the youngest canton in 1979. Each canton has equal rights, including the smaller ones such as Obwalden or Appenzell Inner Rhodes.
Art. 1 FC has important legal consequences: The Swiss Confederation thereby becomes a legal person. It can conclude contracts, own property and appear before courts. According to case law, it is exempt from cantonal taxes and fees (OG Lucerne, SJZ 1993, 283).
The enumeration of the cantons is binding. If one wishes to change the composition of cantons - for example through the merger of two cantons - Art. 1 FC must be amended. This was confirmed by the Federal Supreme Court in discussions about a reunification of the two Basel cantons (BGE 94 I 525).
A concrete example: If the Canton of Basel-City and Basel-Country wished to merge, a popular vote on the constitutional amendment would have to take place. This would require both the popular majority and the majority of the cantons - i.e. the approval of the majority of the cantons. Only then could Art. 1 FC read "Basel" instead of "Basel-City and Basel-Country".
The formulation "The Swiss people and the cantons... form" shows the special character of Switzerland: Both the citizens and the cantons are bearers of state authority. This distinguishes Switzerland from other federal states and establishes the system of double majority for constitutional amendments.
Art. 1 FC — The Swiss Confederation
#Doctrine
#1. Legislative History
N. 1 Art. 1 FC continues the identically worded Art. 1 of the Federal Constitution of 1874. The explanatory report on the preliminary draft of 1995 (PD 1995) already stated that the provision bindingly established the number and existence of the cantons; changes would only be possible through the constitutional revision procedure. The order of the cantons was retained for traditional reasons, even though it carries no legal significance (Explanatory Report PD 1995, p. 29 f.). The preliminary draft also envisaged no longer identifying the half-cantons separately in parentheses, since they too are equal members of the Confederation; the remaining law applicable to the half-cantons was to be expressly regulated in the relevant individual provisions (Explanatory Report PD 1995, p. 29 f.).
N. 2 The Federal Council's Message of 20 November 1996 adopted this approach and emphasised that the enumeration by name of all 26 cantons anchored the existence of the Swiss Confederation in constitutional law (BBl 1997 I 1, 124 f., 589). The Message cited as deliberate drafting decisions: the retention of the traditional order of the cantons (three former presiding cantons under the Federal Treaty of 1815, followed by the others in the order of their accession), the linking of the half-cantons with «and» rather than by parenthetical notation, and the choice of the term «Swiss Confederation» as a designation for the state that is neutral with respect to the internal federal organisation (BBl 1997 I 1, 124 f.). Alphabetical order and an enumeration according to date of accession were expressly rejected (BBl 1997 I 1, 124).
N. 3 In the Council of States, rapporteur Frick (C, SZ) emphasised that the committee wished to express, through the formula «The Swiss People and the Cantons», rather than merely «the Cantons», that the Swiss People, alongside the cantons, is the other constituent element of the Confederation: «We wish to express thereby that the Swiss People is the other element alongside the cantons.» Federal Councillor Koller agreed with this formulation; the «and» linking the half-cantons had been introduced at the express request of the Conference of Cantonal Governments. Council of States member Plattner (S, BS) criticised the coupling of the half-cantons with «and» as an anachronism that denied them a Council of States seat and half a cantonal vote: «The half-cantons are, so to speak, only a comma away from full cantonal status.» In the National Council, Sandoz Suzette (L, VD) objected to the removal of the historical designations («Unterwalden ob und nid dem Wald», «Appenzell Ausser- und Innerrhoden»): «Comment peut-on, en actualisant, biffer d'un coup de crayon des siècles d'histoire?» This objection did not prevail in the final vote of 18 December 1998. The popular referendum of 18 April 1999 led to the adoption of the new Federal Constitution.
#2. Systematic Classification
N. 4 Art. 1 FC opens the first Title («General Provisions») of the Federal Constitution and forms the cornerstone of the entire constitutional framework. The provision is an organisational norm, not a fundamental rights norm and not a statement of state objectives: it establishes neither subjective rights nor directly enforceable claims of individuals (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 144 f.).
N. 5 Within the first Title, Art. 1 FC is in close systematic connection with Art. 3 FC (Cantons), which defines cantonal sovereignty as a residual competence, with Art. 37 FC (Rights of citizenship), which links individuals to the federal state through the cantonal level, and with Art. 53 FC (Existence and territory of the cantons), which governs the procedure for changes to the composition of the cantons. The 1998 parliamentary debate made clear that Art. 1 FC deliberately refers to popular sovereignty and federalism as equally constitutive principles of the federal state (→ Art. 3 FC; → Art. 53 FC; ↔ Art. 37 FC).
#3. Elements of the Provision / Normative Content
N. 6 Art. 1 FC contains two addresses of the norm: «the Swiss People» and «the Cantons». This dual formula expresses that Switzerland as a federal state is founded both on democratic legitimation through the people and on the federal union of sovereign member states. Rhinow/Schefer/Uebersax describe this as the «dual origin» of federal statehood, which finds its normative complement in the Preamble («with the will to … renew the Confederation») (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 9 ff.).
N. 7 The enumeration of the 26 cantons is exhaustive and constitutive: only the communities named therein are members of the Confederation. «Canton» within the meaning of Art. 1 FC encompasses both the 20 full cantons and the six half-cantons (Obwalden and Nidwalden, Basel-City and Basel-Country, Appenzell Outer Rhodes and Appenzell Inner Rhodes). These are linked in the enumeration in pairs by «and», which visually highlights their special position — as compared to the other cantons separated by «,». The designation «half-canton» does not appear in Art. 1 FC; the concept is found implicitly in Art. 142 para. 4 FC (majority of cantons) and Art. 150 para. 2 FC (Council of States), where the differentiated weighting of votes finds expression (Biaggini, BV-Kommentar, 2nd ed. 2017, Art. 1 N. 5 f.).
N. 8 The order of the cantons follows historical tradition: Zurich, Berne and Lucerne appear as the former presiding cantons of the Diet; the remaining cantons follow in the order of their accession to the Confederation. This order has no legal significance under current constitutional law and in particular establishes no hierarchy among the cantons (BBl 1997 I 1, 124; Explanatory Report PD 1995, p. 30).
N. 9 The phrase «form the Swiss Confederation» designates the Confederation as the legal subject arising from the union of the people and the cantons. «Form» is not to be understood as a one-time historical founding act, but as an ongoing constitutive relationship: the Confederation exists from and through its members. The term «Swiss Confederation» is a more neutral term than «federal state», preserving historical continuity without prejudging the internal structure (BBl 1997 I 1, 124 f.).
#4. Legal Consequences
N. 10 Art. 1 FC establishes the existence of the cantons in a constitutionally binding manner. Any change to the number or composition of the cantons requires a constitutional revision. Whether a change to the composition of the cantons is subject to mandatory (Art. 140 para. 1 lit. a FC) or optional constitutional revision depends on the nature of the change; changes affecting Art. 1 FC itself always require a double majority (people and cantons pursuant to Art. 142 para. 1 FC). The procedure for the creation, dissolution, division and merger of cantons is further governed by Art. 53 FC (→ Art. 53 FC).
N. 11 The most central legal consequence of the provision is its role as the foundation of the federal allocation of competences: by naming the Swiss People and the Cantons as the constituent elements of the Confederation, Art. 1 FC legitimises the residual competence of the cantons enshrined in Art. 3 FC and the federal competences set out in Art. 42 ff. FC. The cantons exercise, as Art. 3 FC makes clear, all rights not conferred upon the Confederation. Art. 1 FC is in this respect the logical starting point for every delimitation of competences between the Confederation and the cantons (Häfelin/Haller/Keller/Thurnherr, op. cit., N 731 ff.).
N. 12 No direct subjective legal consequence: Art. 1 FC is not enforceable before the courts as an independent basis for a claim. Individuals cannot derive any rights from the provision. The Federal Supreme Court has to date invoked Art. 1 FC exclusively as an interpretive frame of reference — in particular to confirm the independence of the cantons within the federal structure and to interpret competence norms (→ N. 18 f. for case law).
#5. Disputed Questions
N. 13 Dualism of People and Cantons — equal rank or hierarchical relationship? The formula «The Swiss People and the Cantons form» raises the question of whether the people and the cantons are equally ranked or hierarchically ordered constituent elements of the Confederation. The prevailing doctrine regards popular sovereignty and federal statehood as equally weighted and mutually conditioning foundations of the state: neither may be reduced to the other. Rhinow/Schefer/Uebersax speak of a «dual origin» (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 9), and Biaggini holds that both elements are «constitutive» for the constitutional system (BV-Kommentar, 2nd ed. 2017, Art. 1 N. 2 f.).
N. 14 A divergent position, according to which ultimate priority belongs to the pouvoir constituant of the people, is advanced by Auer/Malinverni/Hottelier: in their view, the Swiss People is the actual author of the constitution; the cantons, while also named in Art. 1 FC, ultimately derive their state existence from recognition by the Federal Constitution, whose bearer is the people (Auer/Malinverni/Hottelier, Droit constitutionnel suisse, vol. I, 3rd ed. 2013, N 253 ff.). Aubert — in agreement with the older doctrine (Burckhardt, Fleiner) — took the view that autonomous limits on constitutional revision should be rejected, which implicitly confirms the primacy of the sovereign people's pouvoir constituant over the cantons (Aubert, Traité de droit constitutionnel suisse, 1967, N 332; cf. also BGE 94 I 525 E. 9, where the Federal Supreme Court expressly left open the question of autonomous limits). This controversy is not merely theoretical: it has practical significance for the question of whether and to what extent the cantons are legally protected against constitutional revisions affecting their existence or competences.
N. 15 Legal nature of the «half-cantons» The concept of «half-canton» is imprecise as a matter of public law. Art. 1 FC deliberately avoids it. The communities concerned — Obwalden and Nidwalden, Basel-City and Basel-Country, Appenzell Outer Rhodes and Appenzell Inner Rhodes — are fully-fledged cantons with their own constitutions, their own law, and their own territory. Their differentiated position derives exclusively from the specific provisions concerning the federal level (Art. 142 para. 4 FC: half a cantonal vote in the popular majority; Art. 150 para. 2 FC: one Council of States seat each instead of two). Council of States member Plattner described this differentiation as an anachronism as early as 1998. Biaggini considers the designation «half-canton» a historical relic without substantive justification and advocates full equalisation (BV-Kommentar, 2nd ed. 2017, Art. 1 N. 5 f.). The contrary view, according to which the differentiated position protects historically developed characteristics that cannot be readily removed, is also held, but has found little support in more recent doctrine.
N. 16 Order of cantons and the principle of equal treatment Some authors have questioned whether the established order of the cantons — despite its expressly declared insignificance — implicitly suggests a hierarchy and thereby engages the principle of equal treatment. Müller/Schefer deny this: the order is purely traditional with no normative import; any other order (alphabetical, by date of accession, by population) would be equally arbitrary (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 641). The Message expressly rejected a change to alphabetical order (BBl 1997 I 1, 124).
#6. Practical Notes
N. 17 Changes to the composition of cantons Any change to the composition of the cantons as established in Art. 1 FC requires a revision of Art. 1 FC itself, since the enumeration is exhaustive and constitutive. The procedure is governed by Art. 53 FC, which requires for the creation of a new canton the consent of the affected population, the affected cantons, and the people and cantons at the federal level. The practical significance is illustrated by the case law on the half-cantons: the Federal Supreme Court held as early as BGE 61 I 166 E. 5 that Art. 1 FC conceived of the Canton of Basel «at least conceptually as continuing to exist», which did not preclude from the outset under federal law the reunification initiative of the two Basels. The elaborate sequence of proceedings (BGE 61 I 166; BGE 94 I 525) illustrates the constitutional hurdles that changes to cantonal composition must clear.
N. 18 Federal autonomy in the judicial context The federal structure pursuant to Art. 1 FC provides the interpretive framework for the competence norms of Art. 42 ff. FC. In BGE 122 I 70 E. 1, the Federal Supreme Court emphasised that the cantons retain their competences in areas of federal law that are not exhaustively regulated, thereby confirming the independence of the cantons enshrined in Art. 1 FC as an enduring element of the federal state. In BGE 125 II 152, the Federal Supreme Court applied the same principle to the delimitation of federal and cantonal competences in relation to the licensing of gambling machines.
N. 19 Art. 1 FC as an interpretive aid in tax law The cantonal independence guaranteed by Art. 1 FC grounds the tax autonomy of the cantons, which the Federal Supreme Court in BGE 133 I 206 E. 5 derived expressly from Art. 3 FC (in conjunction with Art. 1 FC): «The cantons are in principle free to design their tax system» — but within the limits of the Federal Constitution, in particular Art. 8 para. 1 and Art. 127 para. 2 FC. The Court struck down the regressive tax rates of Obwalden as contrary to the principle of equality, but at the same time confirmed federal tax competition as constitutionally permissible. Of practical relevance is that cantons may exercise their latitude only within the limits of federal constitutional law — a principle that has its systematic starting point in Art. 1 FC (↔ Art. 3 FC; → Art. 49 FC).
N. 20 Non-invocability as an independent basis for a claim Art. 1 FC has no direct effect as a subjective right. In legal practice, the provision must therefore always be cited in conjunction with an operative constitutional provision (Art. 3 FC for cantonal competences, Art. 53 FC for changes to cantonal composition, Art. 142 FC for the majority of cantons). An isolated invocation of Art. 1 FC in an appeal remains without effect.
Art. 1 FC
#Case Law
#Formation of New Cantons and Reunification
BGE 61 I 166 of 21 June 1935 Initiative for the reunification of the cantons of Basel-Stadt and Basel-Landschaft. Relevance: Fundamental decision on the interpretation of the federal structure of the Confederation and on the possibilities for changes to cantonal territory.
«The reunification of the two half-cantons has the consequence that the existing state organisation of Basel-Land is dissolved, as its territory and people become part of a larger state association to be established. [...] The reservation contained in this decision expresses that the separation of the two Basel cantons, which belong together historically, geographically, economically and culturally, was a major political error and that (voluntary) reunification is to be strived for, particularly from the standpoint of the Confederation, as indeed Art. 1 FC also envisages the canton of Basel as continuing to exist, at least in idea (if not in constitutional reality).»
#Federal Division of Powers
BGE 125 II 152 of 23 February 1999 Delimitation of federal and cantonal powers in the licensing of gaming machines. Relevance: Confirms the principle of residual cantonal powers within the federal order under Art. 1 FC.
«The cantons have no entitlement to continuation of the previous practice of homologation of gaming machines by the Federal Office of Police. The Federal Council, by enacting the federal gaming machine ordinance, did not encroach upon cantonal jurisdiction.»
BGE 122 I 70 of 22 February 1996 Cantonal jurisdiction for restrictions on taking off and landing with hang gliders. Relevance: Reaffirms the importance of the federal division of tasks between the cantons constituted in Art. 1 FC and the Confederation.
«Art. 37ter FC gives the Confederation comprehensive, but not exclusive, jurisdiction in the field of aviation. The cantons remain competent for legal questions that the Confederation has not conclusively regulated.»
#Federal State Continuity
BGE 133 I 206 of 1 June 2007 Constitutionality of Obwalden's degressive tax rates. Relevance: Clarifies the continuing independence of the cantons in the federal system of the Confederation.
«Principle of the primacy of federal law (Art. 49 para. 1 FC). Tax rate autonomy of the cantons. Taxation principles are primarily a matter of federal law, but the cantons have considerable scope for discretion in designing their tax systems.»