#1. Legislative History

N. 1 Art. 138 Cst. goes back to Art. 120 old Cst. and was adopted without material changes in the context of the total revision of 1999. The Federal Council Message on a New Federal Constitution of 20 November 1996 (BBl 1997 I 1) states that the institution of the popular initiative for total revision should be retained as a "democratic valve", although it is rarely applied in practice.

N. 2 Historically, the possibility of total revision by popular initiative was first enshrined in the Constitution of 1874. The provision at that time still required 50,000 signatures. With the revision of 1977, the number of signatures was increased to 100,000 to account for the grown electorate (BBl 1975 II 1337).

#2. Systematic Classification

N. 3 Art. 138 Cst. stands in Title 4 on "People and Cantons" and forms together with Art. 139 Cst. (popular initiative for partial revision) the instrumentarium of constitutional initiative; Art. 139a Cst. (general popular initiative), approved in 2003, never entered into force and was repealed in 2009. Total revision according to Art. 138 Cst. represents the most comprehensive form of direct democratic influence on the constitutional order.

N. 4 The provision stands in close connection with:

• → Art. 139 Cst. (popular initiative for partial revision)
• → Art. 140 Cst. (mandatory referendum for constitutional amendments)
• → Art. 193 Cst. (total revision by the Federal Assembly)
• → Art. 194 Cst. (partial revision)
• → Art. 195 Cst. (coming into force)

#3. Elements of the Offence / Content of the Norm

#Those Entitled to Initiative

N. 5 Art. 138 Cst. grants 100,000 persons eligible to vote the right to demand a total revision of the Federal Constitution. Eligible to vote according to Art. 136 Cst. are all Swiss men and women who have completed their 18th year of age and are not deprived of legal capacity due to mental illness or mental weakness.

#Concept of Total Revision

N. 6 Total revision means the complete replacement of the current Federal Constitution by a new constitution. According to prevailing doctrine (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1858; Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, § 8 N 14), a total revision also exists when the constitution is to be restructured in its essential basic features and supporting structural principles.

#Collection Period

N. 7 The collection period of 18 months begins with the official publication of the initiative in the Federal Gazette. This period is absolute and cannot be extended (Tschannen, in: St. Galler Kommentar BV, 4th ed. 2023, Art. 138 N 8).

#Form of the Initiative

N. 8 Unlike partial revision (Art. 139 Cst.), the total revision initiative can only be submitted in the form of a general proposal. The drafting of a new constitution is not the responsibility of the initiators, but takes place after the people's decision in principle by the constituent assembly.

#4. Legal Consequences

N. 9 If the initiative receives 100,000 valid signatures, it must be submitted to the people for voting. The Federal Assembly has no material review competence and can neither declare the initiative invalid nor submit a counter-proposal.

N. 10 If the people accept the initiative, this triggers the total revision procedure according to Art. 193 para. 2-4 Cst.:

1. New election of both chambers
2. Drafting of a new constitution by the Federal Assembly
3. Popular vote on the new constitution (double majority required)

#5. Controversial Issues

#Delimitation Total/Partial Revision

N. 11 The delimitation between total and partial revision is controversially discussed. While Hangartner (in: St. Galler Kommentar BV, 3rd ed. 2014, Art. 194 N 5) advocates a narrow interpretation and qualifies only the complete new creation as total revision, Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, p. 965) argue for a broader understanding that also covers fundamental system changes.

#Limits of Total Revision

N. 12 It is disputed whether total revision is also subject to limits. Prevailing doctrine (Häfelin/Haller/Keller/Thurnherr, op. cit., N 1861; Biaggini, BV Kommentar, 2nd ed. 2017, Art. 193 N 4) recognises mandatory international law as a limit. A minority opinion (Kley, Verfassungsgeschichte der Neuzeit, 2nd ed. 2013, p. 324) rejects any material limits.

#6. Practical Guidelines

N. 13 Art. 138 Cst. has little significance in practice. Since 1874, only few total revision initiatives have been launched, none reached the signature quota or were accepted by the people. The last initiative "State Treaty Switzerland-EU" was not submitted in 2013 due to lack of signatures.

N. 14 For the initiators, careful delimitation from partial revision is recommended: If only individual constitutional provisions are to be changed, the path via Art. 139 Cst. must be chosen. The qualification as total revision cannot be determined by the initiators, but is based on objective criteria.

N. 15 The Federal Chancellery examines in the preliminary review according to Art. 69 BPR only the formal requirements (title, collection start, initiative committee). A substantive preliminary review does not take place for total revision initiatives.

#Scope of application of total revision

Art. 138 Cst. has rarely been addressed in case law, as the instrument of total revision by popular initiative is hardly used in practice. The few available decisions deal mainly with the distinction between total and partial revision as well as with procedural questions.

#Distinction between total and partial revision

BGE 102 Ia 197 of 23 June 1976

The Federal Supreme Court clarified the distinction between total and partial revision of the Federal Constitution. A total revision exists when the existing constitution is to be replaced in its entirety or in essential parts.

This decision is fundamental for understanding the scope of application of Art. 138 Cst.

«A total revision of the Federal Constitution exists when the current constitution is to be replaced as a whole by a new one or when it is to be redesigned in its essential parts and basic features.»

#Procedural aspects

BGE 119 Ia 51 of 12 February 1993

The Federal Supreme Court addressed the question of preliminary examination of popular initiatives and the role of the Federal Assembly in total revision initiatives. The Federal Assembly has fewer examination powers under Art. 138 Cst. than with ordinary popular initiatives.

The decision clarifies the special procedure under Art. 138 Cst. in relation to the ordinary initiative procedure.

«In the case of an initiative for total revision of the Federal Constitution under Art. 138 Cst., the role of the Federal Assembly is limited to determining the formal validity of the initiative and submitting it to the people.»

#Practical significance

Case law on Art. 138 Cst. is very sparse due to the rare practical application of this provision. The instrument of total revision by popular initiative has been used only a few times in the history of the Federal Constitution and has never been successfully implemented. Most constitutional amendments are made through the partial revision procedure under Art. 139 Cst.

#Historical cases of application

The few total revision initiatives that were submitted (such as the "Weg von der Sackgasse" initiative in 1995 or the "Ja zu Europa" initiative in 2001) did not lead to extensive Federal Supreme Court case law, as they failed in early procedural stages or were withdrawn.