James H. Hutson, Americans and the Swiss constitution of 1848, excerpt, in The Sister Republics, Switzerland and the United States from 1776 to the Present, Library of Congress, Washington DC, 1991, p. 32 – 41
A_2.28_HUTSON_American And Swiss Constitution 1848
a) Background
A Special focus of this part of the Anthology is on the cultural exchanges and cultural encounters between Switzerland and the United States. According to James Hutson it is not immodest to say that we are talking about a special relationship. He writes in the introduction to the book at hand, that in 1776 the government of Switzerland known to its citizens as Eidgenossenschaft (community of the oath) had existed for almost 500 years. The Eidgenossenschaft was a Confederacy of 13 states called Cantons, which where republics of various sizes, some democratic, others aristocratic”. Republics were rare in 1776 and had little company in 18th century Europe. As the introduction states, therefore, many Swiss welcomed the Declaration of Independence of the United States “since it ushered a soulmate into the community of nations.” Republicanism was not the only bond between Switzerland and the United States. From 1776 on, political developments in one country often paralleled those in the other, and on important occasions served as a constitutional model for the others. First, according to James Hutson, the Amercian national constitution, the Articles of Confederation, was constructed on the Swiss model of a confederacy of some over sovereign states. Then, Americans repudiated confederal government in 1787 as impotent and unworkable and adapted a new federal constitution. The opponents of the new charter, the Anti Federalists argued that a Swiss style government was still a viable model which offered the best hope for the preservation of American liberty. The Swiss themselves repudiated confederate government in 1848 using many of the same arguments Americans had marshalled against it in 1787 and adapted a Federal constitution modelled after the American constitution of 1787. After the Civil War many American state and local governments adapted constitutional reforms borrowed from the Swiss. The initiative and referendum – which continues to this hour to give the politics of California and other influential states their distinctive tone. The institutional borrowing, according to James Hutson, between the United States and Switzerland ceased after the first World War. Not long afterwards Swiss and Americans ceased referring to each others countries as sister republics.
The editor has divided the book in various chapters, following the chronological order of the book and parallelizing it with the chronological and topical order of the part of the Americanization of Swiss law and legal culture of the Anthology. The book is a welcome addition to the views of the legal relationship between the United States and Switzerland by an American view. The book is vividly written and contains pictures. It is addressed to a broader public and contains a number of footnotes for further research. It is a short and coherent “red thread” (Roter Faden) of the history of the relationship from 1776 to about the first World War.
The author of the book James H. Hutson received his PhD in history from Yale University in 1964. He has been a member of the history department in Yale and William and Mary. Since 1982 he has been chief of the Libraries manuscript division. Dr. Hutson is the author of several books (see biography). We particularly draw the attention to a text written after World War II on the bombing of the Swiss city of Schaffhausen in April 1944 by American airplanes.
b) Summary
The text at hand is a chapter of the book The Sister Republics, Switzerland and the United States, from 1776 to the present, which accompanied an exhibition of the Library of Congress opening in May 1991 to celebrate the 700th anniversary of Switzerland.
The chapter of Hutsons book has to be read in conjunction with the text of William Rappard on Pennsylvania and Switzerland; the Americanization of the Swiss constitution, 1848 (text 2.27), which Hutson cites on several occasions. This chapter again contains interesting insights from an American perspective, which are relevant to the broader concept of the Anthology on legal culture.
“Sympathy for the American cause was far from universal in Switzerland. Though more scholarship is needed to establish the point, it appears that the Swiss divided along class lines in their reaction to the American Revolution. The secretary to the British Embassy in Bern reported to his superiors in 1780 that Swiss elites wanted to see the rebellion crushed, apparently because the subversion of authority being achieved by the Americans might prove contagious among restive populations in various Swiss Cantons. Their fears were evidently well founded, for scholars have claimed that the American Revolution was the model (Vorbild) for two of the most striking episodes of popular unrest in eighteenth century Swiss history: the peasant revolt led by Nicolas Chenaux against the government of Fribourg in 1781 and the Stäfa affair in the Canton of Zurich in 1795-96.”
According to Hutson, there is no doubt, that the turmoil, created by the French Revolution focused the attention of many Swiss on the American constitution of 1787. In 1798 French troops invaded Switzerland, rapidly conquerded it and imposed the bone and indivisible Helvetic Republic. The Helvetic Republic was an example of what the American antifederalist called a “consolidated” government. The sovereignity and the independence of the Cantons were abolished and all power was exercised by a five-man directory.-Few were sorry when it collapsed in 1803. According to Hutson many Swiss who opposed the Helvetic Republic, did not want to revert to the politics of the old Confederation, in which the old Cantonal sovereignty had frustrated the achievement of worthy national objectives. What was needed, according to Hutson, was a federal system, such as the framers of the American Constitution had established in 1787. “According to William Rappard the trauma of the Helvetic Republic made the United States “very fashionable” with the Swiss. Politicians, academics and clerymen began extolling the American constitution as a model for Switzerland.
The text at hand comments the trials of tribulations of Switzerland in 1803 , in 1813 and the later steps of 1815 arguing that the revolution in Paris that year had encouraged Swiss liberals to oust, the aristocratic leadership. Many of the important Cantons established new governments that were based, according to Hutson, on a model of Jacksonian Democracy In the United States of popular sovereignty. Swiss liberals though were not prepared to open the door of political participation as wide as the Americans were. The text then traces step by step the developments up to 1848. Attractive though the American model appears to have been to many sections of the Swiss public, Swiss politicians, were in no hurry to adopt it as foundation of a new constitutional order. After the Swiss “Civil War” the political situation was such, that the diet installed a comitee to devise a Constitution, the drafting of which would be controlled by liberals and radicals. Hutson notes the uneven length of the constitutional document and cites Rappard again that it was drafted as a “conscious and deliberate imitation of American model”. This was specifically the case in regard to bicameralism and federalism. As to federalism, the Swiss constitution of 1848, like the American constitution of 1787, converted a league of sovereign states into a federal state, in which power was divided between different levels of government. Hutson notes differences in the making of the seperation of powers, the executive branch as the Swiss Federal Tribunal and finally as regards the power given to the central government.
The text ends: “Despite these differences – and it would be possible to mention more – the important fact to remember in assessing the ties between the Sister Republics is that the major institutional features of the Swiss Constitution of 1848 – bicameralism and federalism – were copied from the American Constitution of 1787. As a Swiss scholar has recently asserted, one “could almost speak of a plagiary. “ – a citation of an unpublished paper “The United States Constitution and Switzerland”of Jean-Francois Aubert, one of the most learned representatives of Swiss constitutional law, who was American trained as well.