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Monday, January 04, 2021

Head of State vs. Head of Government

I'm going to start a series of posts about another work-in-progress. This one is about the constitutional distinction that most democracies make between the head of state and the head of government. The United States is one of the few that does not make that distinction. Why do other nations do so? What do heads of state there do? Is there an advantage in dividing executive authority in this way? 

It's easy to explain why the United States does not divide these executive roles. In 1787, the concept was unknown. King George III did have Prime Ministers (Lord North, for most of the Revolutionary War) but the King retained substantial powers and people did not see Prime Ministers in the modern sense as the head of a parliamentary party. Like most aspects of the British Constitution, the distinction between the Crown and the Government grew slowly and organically. The Framers could not have foreseen this.

Nevertheless, there are some aspects of early American constitutional practice that mimic the separation between the head of state and head of government. One was that Presidents did not openly or directly campaign for office. This was seen as grubby or degrading for the head of state. (Until 1932, we must remember, presidential candidates did not generally go to the party nominating conventions and did not give an acceptance speech either.) Another is that George Washington acted more like a head of state as President and left much of the policy work to Hamilton, who is sometimes described as Washington's Prime Minister. Third, consider all of the circumstances (even now) where we say that the President should not do this-or-that within the executive branch. One could argue that some of that reflects the view that the President, as the head of state, ought not to be involved in certain political matters that are "beneath" him.

The only Supreme Court opinion that says something useful about the President's role as head of state is . . . you guessed it . . . Justice Jackson's concurrence in Youngstown. There he pointed out that the President's "prestige as head of state" adds to his soft or informal power. Heads of Government, even powerful Prime Ministers, lack that prestige and are, in that sense, weaker. 

Tomorrow, I think, I'll talk more about different kinds of heads of state around the world and how they act as a balm against partisanship.

Posted by Gerard Magliocca on January 4, 2021 at 01:35 PM | Permalink

Comments

Just worth to quote from "The Heritage Foundation" titled:

"The Man Who Would Not Be King"

"After the war, there were calls for Washington to claim formal political power. Indeed, seven months after the victory at Yorktown, one of his officers suggested what many thought only reasonable in the context of the 18th century: that America should establish a monarchy and that Washington should become king. A shocked Washington immediately rejected the offer out of hand as both inappropriate and dishonorable, and demanded the topic never be raised again."

Here:

https://www.heritage.org/commentary/the-man-who-would-not-be-king

Posted by: El roam | Jan 4, 2021 2:29:18 PM

Here to Trump v. Vance:

https://www.supremecourt.gov/opinions/19pdf/19-635_o7jq.pdf

Posted by: El roam | Jan 4, 2021 2:23:42 PM

Interesting post. It seems rather, that the author of the post, refers to the difference between monarch, and head of state then. This seems to be rather the right terminology. In the US, it is rather,that the presidency, is rather hybrid office. He is sort of monarch (having all powers vested in him as head of executive branch, article II ) but, not having the immunity for example, of one monarch.

I quote as example, Justice Thomas in Trump v. Vance:

" He distinguished the President from the British monarch, who did have immunity, calling it an “essentia[l] . . . difference” in our system that the President “is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again.” Thus, the President was more like a state governor or a member of the British cabinet than a king."

Thanks

Posted by: El roam | Jan 4, 2021 2:20:55 PM

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