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Friday, December 4, 2009

Is This Any Way to Run a Constitutional Republic? The Swiss Amend Their Constitution to Ban Minarets

Last weekend, the people of Switzerland voted to amend their constitution. The document’s original guarantee of religious liberty will now be qualified through an amendment to Article 72 (which defines the line between church and state), officially banning the construction of minarets, those distinctive large spires that rise from mosques and are used to assist Muslims in the call to prayer.

Like many constitutions written in the modern era, the Swiss Federal Constitution is long and comprehensive; in fact, too long and too comprehensive. Re-written and ratified in 1999, it begins with a declaration to “the Almighty God” (odd, in a country where less than half of the people profess to believe in a Supreme Being) and then goes on in great detail to define the powers and responsibilities of the state, including such stipulations as “the Confederation shall encourage sport” and “the Confederation shall ensure the construction of a network of motorways and shall guarantee that they remain useable.” Unlike the American constitution, which is essentially a negative document asserting what government cannot do, the Swiss Federal Constitution, like many European constitutions, asserts what government must do. But is this stuff really worthy of “higher law”? (You can read the full document here.)

Certainly the minaret argument takes this to the level of the absurd and the dangerous, particularly when you consider that the referendum vote to ban minarets was by a mere majority in each of the cantons, or states; in other words, it required no “supermajority” as we do to amend the Constitution of the United States. Americans’ insistence on a supermajority has prompted some to criticize our Constitution as too hard to amend, as a burden to democracy and as an encouragement to activist judges who seek the make the doctrine more flexible than the document. But the Swiss story shows the dangers when a constitution is too easily amended.

The campaign against the minaret was led by a conservative political party called the Swiss People’s Party (SVP) whose members argue that the minaret is more of a political than a religious statement, though even if it were a political statement, one can’t imagine why a country as steeped in Western liberal traditions as Switzerland would think it appropriate to ban such expression. Their argument seems even more flimsy when examining the “threat” to order posed by Muslims in Switzerland. There are only 400,000 people of the Muslim faith in this country (most of whom are from Turkey and the Balkans) and most of them do not even practice their religion, much less subscribe to the wahhabism of the radical Islamists. Furthermore, only four Swiss mosques actually have the traditional minaret architecture. But this is a story as much about the fears of globalization and of Europe’s shifting political power structure and its declining cultural vitality as it is about religious liberty in this tiny country long known for its neutrality.

The minaret “is a political symbol against integration; a symbol more of segregation, and first of all, a symbol to try to introduce Sharia law parallel to Swiss rights,” says Ulrich Schluer, an SVP lawmaker and one of the authors of the amendment, in an interview conducted by the Los Angeles Times. His concerns are not unfounded as those who know of the recent history of British law ceding certain legal territory to the Sharia will recognize. But then Schluer raises another even more revealing concern. “When you look at the European Union, where are there extremists?” he asks. “In the suburbs and ghetto banlieues of Paris and London . . . We don't want that in Switzerland.”

That’s the real issue here. Banlieues is a French word meaning “outskirts” and, while it is sometimes translated as “suburbs,” make no mistake about it, Schluer is not talking about leafy affluence here. In recent years, the term banlieue has come to reference the specific Parisian neighborhoods of public housing inhabited by Muslim immigrants. The 2005 riots that erupted in these decayed, crime-ridden areas helped propel the then-Interior Minister Nicholas Sarkozy to France’s presidency, since he adopted a hard line against the immigrants and in support of les Francais de souche (native born French). And yet just as important is Schluer’s reference to the European Union, which after years of struggle to find agreement has finally ratified a constitution of its own.

Fears of a “democracy gap” undermining the sovereignty of the separate states within the Union led to the defeat of the EU constitution in 2005 and again in 2008, but last month, seeing an economic self-interest at stake, the Irish and the Czechs reversed their earlier negative votes and now the EU, with headquarters in Brussels, is going about picking its leadership. The most powerful states remain the French and the Germans, hence the worry that the interests of the strong will cancel the interests of the weak (a theme reminiscent of America in 1789) and since more than a third of the Muslims in Europe now reside in France, additional fear that the troubles their neighbor has faced integrating Muslims will bleed into their country have been reinforced in states like Switzerland.

An interesting piece by Geoffrey Wheatcroft in today’s Times suggests that they needn’t worry too much. Wheatcroft sees the new EU as essentially powerless, still characterized by squabbling between powers unsure that they want to marry up, and with a new leadership chosen to emphasize weakness. Perhaps the Swiss would do better to re-examine their own constitution, looking for ways to pare the mundane from essential. They could start by re-reading the principle of religious liberty.

Of course, this is the problem with referenda and weak constitutionalism.


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