Constitutional Adjudication in Switzerland

Abstract

Abstract This chapter considers how constitutional adjudication is conducted in Switzerland. It debunks the notion that the Swiss constitutional system is underdeveloped with regard to constitutional adjudication. The chapter contends that Switzerland has a thoroughly respectable system of constitutional adjudication, albeit with certain idiosyncratic flaws. In particular, this applies to cantonal state authority: the cantons are subject to comprehensive constitutional adjudication. This does not exclude the results of direct democratic decision processes. The Federal Supreme Court (Bundesgericht; Tribunal federal, Tribunale federale) has—and makes use of—the power to review cantonal laws and to revoke them if necessary. Constitutional case law in relation to the cantons is the basis on which the Federal Supreme Court developed an extraordinarily creative jurisprudence in the twentieth century; this jurisprudence has led, inter alia, to the recognition and use of several unwritten federal fundamental rights. In addition, the chapter argues that federal laws have ceased being completely immune against any kind of constitutional review. Finally, Switzerland played an important pioneering role in the development and testing of the public law appeal (Staatsrechtliche Beschwerde).