The return of the nation states

Especially in difficult times: sovereign constitutional state, Federalism and co-responsibility of citizens as the most suitable model

by Dr iur. Marianne Wüthrich

What the prudent ones among us contemporaries have long been admonishing has now (also) arrived in politics and the media: In times of crisis, nothing works without the nation state. The sovereign constitutional state with its legal structure supported by the citizens is best able to bring the population through the time of a pandemic as unscathed as possible. It is also suitable to get over the energy shortage expected in the coming years and decades – or about other bottlenecks or disasters that many of us in good times do not (or do not want to) even think about. However, government orders for the benefit of the people and the community are not enough. If the citizens are to support the measures and think for themselves about what is needed in their village or quarter, a relationship of trust between citizens and authorities is an indispensable basis. This must be maintained and strengthened in the daily struggle for solutions.


As a result of the corona virus, the ideology of a boundlessly globalised world has been confronted with the strong objection to reality. Although the Brussels headquarters first tried to ban checks on persons at the Brenner (mountain pass between Austria and Italy) or elsewhere as a violation of Schengen law, the governments of many European states are now taking the management of the pandemic on their own territory into their own hands. To this end they are, for example, again carrying out checks on persons at their national borders and closing border crossings on secondary routes. In doing so, they are fulfilling their constitutional mandate to put the protection of their own people first. In principle, this duty is part of the nature of the state and is regulated differently in each country. A few fundamental considerations from a constitutional and human perspective come to the fore in the current situation.

Nation state is suitable best to take over responsibility and solve problems

Especially in today’s crisis situation, it is abundantly clear that the nation state is still best suited to assume responsibility and solve the problems at hand. For in the borderless world state, ultimately no one really assumes responsibility. In Switzerland, too, the criers of globalization are currently quieter. Switzerland has always been open to the world - there is no question about that. As a small state in the middle of Europe since the first mule tracks over the Gotthard it has been economically and culturally connected and in exchange with the other peoples of Europe and later the whole world. But its own legal area must remain the responsibility of the sovereign state with its own legislation, its own executive that enforces the law and its own courts that administer justice. Switzerland must not relinquish the legal capacity of the sovereign state under the rule of law, the right to decide its own affairs, certainly not by allowing itself to be tied into an institutional framework agreement made in Brussels.
The unsuitability of the supranational EU construct to solve fundamental problems (currency crisis since the introduction of the euro, inadequate protection of the EU’s external borders, abandonment of internal border protection, etc.) is once again evident today. By acting in accordance with their own laws, the EU member states confirm that the nation state must retain the ability and will to make independent decisions, especially in difficult times. This realisation has now also been taken on board by the Swiss media, the majority of whom are blind to the EU. The “Neue Zürcher Zeitung” for example writes: “There are situations in which one cannot rely on the neighbouring countries – not even on Brussels or the EU, not on the UN or the WTO, and not even on so-called friends”1 And the editorial staff of the “St. Galler Tagblatt” states in an “Analysis of Brussels’ reaction to the Corona crisis”: “When it comes down to it, Europe is incapable of acting.” It also includes a quote from the Italian “Repubblica”: “Europe seems far away from the problems of its citizens; a bureaucratic entity incapable of concrete action.”2
Let us hope that beyond the current crisis situation the citizens and the editors will remember that the sovereign and democratic constitutional state - in exchange and consultation with other states, of course - is best suited to deal with the problems that lie ahead, which imply the coexistence of people and the reality of life.

Restore security of supply in all vital areas

When it comes down to it, every state must first look for itself and its own people: “The pandemic clearly shows that international solidarity is of no importance in times of crisis. States are pushing their own interests hard.” This formulation in the “Neue Zürcher Zeitung”3 is essentially correct, but too brusque. In fact, individual states, and even more so the people, repeatedly show their readiness to help not only their domestic neighbours but also other peoples. But if a country itself is in an emergency situation, it will understandably not export its vital goods. In doing so, however, it must still adhere to the norms of state and international law. It was illegal, for example, for German authorities recently to stop the transit of a truck with protective masks which Switzerland had bought in China and already had paid for. After all, such incidents are likely to open the eyes of one or another all too carefree fellow citizen and those in the administration who are fixated on the EU.
Here we Swiss and our authorities still have some homework to do, for we have let our former high security of supply in vital areas slide in recent decades. Indeed, until now, some people believed that we did not need to worry about whether we were producing enough medical material or agricultural products or energy4 in our own country. After all, wealthy Switzerland could import anything at any time, especially if it integrated itself even more closely into the borderless EU market.
Today, however, we are experiencing in concrete terms that Switzerland can very quickly find itself in an emergency situation because, for example, medical supplies are hardly ever produced domestically anymore and neighbouring countries must first ensure that the needs of their own populations are met. This could also be a reason to appreciate and support our own agriculture more in the future, instead of imposing more and more restrictions and regulations on our farmers. Anyone who still believes that Switzerlands’ agricultural production is superfluous because food can be bought abroad without any problems in a globalised world should wake up from this dream. We should also retain our food sovereignty as far as possible. Just as we support our trade unions in their negotiations with Brussels in insisting on wage protection for our workers that corresponds to the high cost of living in this country, we also stand behind today’s direct payments for the high-quality and sustainably produced goods of Swiss farmers. Because the high level of Swiss environmental and animal protection, which the people want, has its price.
With regard to medical products too, politicians are called upon to face reality and consider ways of increasing domestic production and maintaining sufficient reserves.

The federalist model is also best suited in crises

The federally organised state has differentiated possibilities to react to a difficult situation such as the corona pandemic. For example, the Federal Constitution of the Swiss Confederation (BV) stipulates in Article 57:

Art. 57 Security

  1. The Confederation and the Cantons shall within the scope of their powers ensure the security of the country and the protection of the population.
  2. They shall coordinate their efforts in the area of internal security.

In addition, Article 118 BV applies with regard to health:

  1. The Confederation shall, within the limits of its powers, take measures for the protection of health.
  2. It shall legislate on:
    a. […]
    b. the combating of communicable, widespread or particularly dangerous human and animal diseases; […]

With its decrees published daily since the beginning of March to protect the population and maintain the capacity to act in hospitals (temporary closure of restaurants, shops, schools, prohibition of meetings and events of all kinds, hygiene regulations in facilities that are still open, requesting the population not to leave their homes unnecessarily, and much more), the Federal Council is fulfilling its duty under Articles 57 and 118 of the Federal Constitution and entrusts the cantons with the implementation of these serious measures.
The cantonal governments and their administrations, for their part, have their hands full to ensure that the new regulations from Berne, which are being introduced almost daily, are implemented in the most socially acceptable way possible, which also means including the needs and requirements of the people affected and of SMEs in their planning. And it goes without saying that the cantons must be able to rely on the active cooperation of the authorities and the citizens in the municipalities in this process. For their part, the cantons are supported by the Confederation, as provided for in Article 44 paragraph 1 of the Constitution:

The Confederation and the Cantons shall support each other in the fulfilment of their duties and shall generally cooperate with each other.

Emergency law

Article 185 of the Federal Constitution gives the Federal Council the authority to issue its instructions in the form of temporary emergency ordinances.

Art. 185  External and internal security

  1. The Federal Council […]
  2. […] takes measures to safeguard internal security.
  3. It may in direct application of this Article issue ordinances and rulings in order to counter existing or imminent threats of serious disruption to public order or internal or external security. Such ordinances must be limited in duration.
  4. In cases of emergency, it may mobilise the armed forces. Where it mobilises more than 4,000 members of the armed forces for active service or where the deployment of such troops is expected to last for more than three weeks, the Federal Assembly must be convened without delay.

According to the online-platform “Infosperber”, the Federal Council has already made use of this competence in accordance with Art. 185 paragraph 4 and, as of 16 March 2020, has deployed 800 medical soldiers for hospital and logistics operations. Further deployments are possible.5
Whether the federal government is doing enough to slow down the course of the pandemic in the country is currently being questioned by some citizens, including doctors. Others, by contrast, feel that it is doing too much because the businesses, especially the small ones, are getting into trouble after a short time. Many have already switched to short-time work. In order to cushion this to some extent, the Federal Council has announced that for the time being 40 billion Swiss francs will be used as emergency aid for the economy and employees.
We cannot judge today whether the federal government is doing too much or too little. For the time being, we have enough to do to comply with the measures taken so far and to support the authorities in taking further steps.

The subsidiarity principle in a direct democratic federal state

Article 5a of the Federal Constitution stipulates:

The principle of subsidiarity must be observed in the allocation and performance of state tasks.

Article 43a paragraph 1 explains the principle of subsidiarity:

The Confederation only undertakes tasks that the Cantons are unable to perform or which require uniform regulation by the Confederation.

Both provisions were only adopted by the people and the cantons in 20046 and have been part of the constitution since 1 January 2008. In reality, the principle of subsidiarity, as an unwritten constitutional law, was part of Switzerland’s self-understanding long before that. There is no more beautiful and fitting description of the meaning and content of the principle of subsidiarity than that of Gottfried Keller, the great nineteenth-century Swiss poet and Zurich town clerk:

“No government and no batallions can protect justice and liberty where a citizen is not able to step out of doors and see what is going on.“ 

In more prosaic language, the principle of subsidiarity aims at the greatest possible self-determination and personal responsibility of the individual and the family, as far as this is possible and reasonable. What goes beyond their powers should be regulated by the community. In doing so, we must not forget that in Switzerland the citizens themselves are the municipality. They decide in the municipal assembly or at the ballot box which tasks their municipality should take on. Naturally, this occurs within the framework of cantonal law, which is also set by the citizens. The same principle applies to the actions of the cantons and the Confederation (see the provisions of the Federal Constitution quoted above).
Even though the Confederation currently issues binding directives to the cantons by means of emergency legislation, the interaction between the three levels of government works so well because they are used to cooperating with each other. It goes without saying that, according to Art. 185 BV, emergency law is only valid for a limited period of time, i.e. as long as the hazard exists. Afterwards decisions must be taken again from the bottom-up as much as possible.

Example school closures

The decision of the Federal Council of 13 March 2020 to close, inter alia, all schools in the country from 16 March to initially 4 April, later extended until 19 April with emergency right, is a good example for application of the principle of subsidiarity.
On the same day, the cantonal governments decided on the necessary measures. The cantonal and supracantonal universities, vocational schools and secondary schools, underly to the enforcement by  the cantons in cooperation with the school administrators, they refer  also to the teaching staff.
As for elementary schools,  the Government Council of the Canton of Zurich for example instructed the communities to close their schools on Monday, March 16. The School authorities and schools are responsible to take care of the students entrusted to them. From today’s perspective, the Department of Education expects three to four months, during which a daily assessment of the situation is necessary.
The implementation is now being fine-tuned in the individual communities. Of course, in the city of Zurich (434,000 inhabitants) this will be a very different task from those in the smaller communities. So, in the rural Zurich Weinland (wine area), there first had to be an inventory for how many children there is a need for care.
In the district capital Andelfingen, the primary school (1st – 6th grade) weekly will have to specify the need. Whenever possible, the parents should take over the care/support. For the first week, only twelve children were reported – from a total of 450!7 In the cities, the numerical ratio will of course look completely different.
In the meantime the primary school in Andelfingen announced on its homepage,that the all-day emergency care is exclusively offered from 23 March to parents “who are not able to organise and ensure the care for their children independently and who work in the subsequent following professional groups: Health professions, blue-light organisations or professions which provide the basic services of the population”. Another requirement for the families – as the grandparents as members of a risk group should not be used for care, unless they have not yet reached the retirement age.
On Monday, you could see those children, who were cared for at home, playing outside in beautiful spring weather and riding a bike or roller skates, while the teachers were working at full speed  in order to prepare learning material and -programs for different school levels  for home learning. Towards the evening, the children could pick up their documents (on paper!) in their schools. In the secondary school Uhwiesen (7th - 9th school year) this already happened from 11 in the morning, in small groups.
Now the big challenge will be, how distance learning will work. In Andelfingen, students from the 4th grade onwards, who do not have computers at home, are provided with iPads, Electronic means are intended to promote contacts between teachers and students, and the tasks will be given to the pupils. The teachers form teams as per school level for the students.
In the current situation, for once, digitalisation is of great use. But the idea, children from the 1st grade (!),  could now – theoretically without help from parents – work at home alone for several hours a day on their tasks, in the worst case up to the summer holidays, will prove to be unrealistic (as the critics of the self-organized Learning SOL are saying for a long time). Everywhere teachers are already thinking of other solutions for example, lessons in the virtual classroom, so that the students can then independently solve homework in larger portions as usually. Finally, there is an opportunity for children and young people to practice and repeate smaller quantities of learning material, which is intended to be practically abolished by the constructivist principle of the Curriculum 21.

“The strength of the people is measured by the welfare of the weak”

The most important prerequisite for ensuring that the ordered drastic measures are working, is the willingness of the population, that is, each and every one of them has to take part in keeping the rules. It’s the only way to achieve two main objectives: protection of the vulnerable persons and the provision of the health care. Under the title “Now it depends on us all”8  NZZ editor Michael Schoenenberger describes in impressive words what this means: “‘The strength of the people is measured by the welfare of the weak.’ This part of the Preamble to the Federal Constitution may sound pathetic, but it’s true. Translated  into the times of the corona-virus this means that the strong are called to act in an absolutely responsible manner at the the moment the weak are threatened.” We’re used to pass the responsibility for the duty of care to the authorities, says Schoenenberger, but this doesn’t work in the corona crisis: “Now everyone must ask himself: what can I do? Of course, it’s clear what has to be done. It is necessary to stay at home, not to travel, to renounce, to limit yourself, to keep your distance, to comply with hygiene regulations. The party is over, at least for a little while.”
Because if many people become ill in a short time, there would be a lack of material and  medical specialists to guarantee the necessary medical and nursing care. It never schould come that far, warns Schoenenberger: “It would be sad and a screaming injustice, if our hospitals should have to leave sick people to death due to the lack of capacity.» Therefore, each of us, especially the young, healthy, should have to adjust their lifestyle for some time: “This is social behavior at times of the corona virus. If we Swiss people succeed to adjust our behavior, we can say: We are a strong people because together and through our behavior we protect the weak. Does it not succeed, we have failed together.”
There are already many encouraging signs for readiness to help in many places: Numerous people are reporting everywhere, for example they are ready to do the shopping for older and sick people.    •

Schoenenberger, Michael. «Jetzt kommt es auf uns alle an» ( “Now it’s up to all of us ), in: «Neue Zürcher Zeitung» of 14 March 2020
Brändle, Stefan. «Die EU kommt an ihre Grenzen» ( The EU comes to its borders ), in: «St. Galler Tagblatt» of 18 March 2020
Schoenenberger, Michael. «Jetzt kommt es auf uns alle an» ( Now it’s up to all of us ), in: «Neue Zürcher Zeitung» of 14 March 2020
SeeWüthrich, Marianne “For a reliable power supply and the protection of the domestic electricity production; Integration into the EU power market won’t fix it “, in: Current Concerns from 17 March 2020
Ramseyer, Niklaus. «Das ‹Spitalbataillon› ist da – das Militärspital ist längst weg» ( The ‘hospital battalion’ is here - the military hospital is long gone ), in: Infosperber of 16 March 2020
6  As part of the vote on the “Reorganisation of financial equalisation and the division of tasks between the Confederation and the Cantons” (NFA)
7  «Schule Flaachtal mit iPads ‹ab der vierten Klasse gut aufgestellt›» (School Flaachtal with iPads ‘well positioned from the fourth grade on) (spa), in: «Andelfinger Zeitung» of 1 March 2020
8  «Neue Zürcher Zeitung» of 14 March 2020


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