Constitutional Heads of State

The recent Italian elections resulted in a hung Parliament. As a result, the Italian President will play a crucial role in the coming weeks as an honest broker between the parties as they attempt to assemble a coalition. This illustrates an important difference between our Constitution and those of many nations. We do not divide the role of head of state from the head of government.

The function of a head of state in a democracy receives little attention in law reviews. (Indeed, a search shows that law review articles on heads of state are almost always about whether they have immunity from criminal prosecutions or civil suits.) I think that this is a significant oversight. Walter Bagehot’s book on The English Constitution, which is the best book ever written on how constitutions work, spent a great deal of time discussing the powers of the Crown as distinct from the Prime Minister. The fact that many countries deliberately reject the American fusion of the two roles must say something. Maybe separation of powers is incomplete with that extra separation.

One thing that you can say about an elected head of state (let’s leave the Queen or the Japanese Emperor aside for the moment) is that it creates space for a nonpartisan force within constitutional politics. This might be especially helpful when party passions are running hot, while also serving as a reserve authority in moments of crisis (such as a hung Parliament). The lack of any such person in the United States partially explains why we have such a hard time handling presidential election disputes. (The Supreme Court became the de facto head of state, you might say, during the 2000 election.)

The topic is also relevant because, as I’ve posted in the past, President Trump is acting as something of an anti-head of state. What I mean by that is that he makes statements (usually on Twitter) that his officials then say are not government policy. How can that be? Isn’t he the head of government? Or are these officials going rogue? Maybe neither. Perhaps when the President tweets he is not acting as the head of government. It’s not the posture of a traditional head of state, but it has head-of-state aspects.

Anyway, this may be my next article after the one on the ERA.

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