You know you are in deep constitutional trouble when your president invokes an apocryphal quote attributed to Napoleon Bonaparte to justify his contempt for the rule of law. On Feb. 15, Donald Trumptook to his Truth Social platform and his personal X account to post the quote, “He who saves his Country does not violate any Law.” Later the same day, the official White House X account sent out the same message.
People who imitate Napoleon have long fascinated psychiatrists. In their field, “Napoleonic delusions” are classified as a subtype of the wider emotional disorder known as grandiosity. But whether Trump actually suffers from a definable mental illness or is simply trolling the libs, there is ample reason to believe he thinks he is above the law; or perhaps more accurately, that he is the law.
All of this looks to be pointing directly to a full-blown constitutional crisis.
Since his inauguration on Jan. 20, Trump has undertaken a variety of sweeping Napoleonic actions aimed, among other targets, at rolling back birthright citizenship guaranteed by the 14th Amendment; impounding and freezing federal funds appropriated by Congress; asserting direct presidential control over independent federal agencies like the Securities and Exchange Commission, Federal Trade Commission, Federal Communications Commission, National Labor Relations Board and U.S. Agency for International Development; pink-slipping thousands of federal workers; expunging all diversity, equity, inclusion and accessibility programs from all federal agencies; removing LGBTQ mandates in government; and creating the Department of Government Efficiency to give Elon Musk and his post-pubescent DOGE minions authority to access confidential Treasury Department, IRS and Social Security databases. Vice President JD Vance has also floated the idea of defying adverse court orders.
Trump has been aided in his power grab by supine Republican majorities that have rubber-stamped his appointment of cabinet members. And while lower-court judges have pushed back against some of Trump’s actions, many of his executive orders appear headed to a Supreme Court firmly in the hands of a six-member MAGA-friendly majority, including three justices nominated by Trump himself.
All of this looks to be pointing directly to a full-blown constitutional crisis.
Although there is no universally accepted definition of a constitutional crisis, experts generally agree the term applies to situations where the Constitution no longer works as designed. In a 2017 essay for LawFare, Princeton political scientist Keith Whittington subdivided constitutional crises into “operational” and “fidelity” categories. The operational type, according to Whittington, occurs “when important political disputes cannot be resolved within the existing constitutional framework.” Crises of constitutional fidelity occur when the Constitution’s meaning is clear, but one or more branches of government or a key political actor willfully defies the national charter’s clear meaning.
Law professors Jack Balkin of Yale and Sanford Levinson of the University of Texas at Austin have added a third type of crisis to the operational/fidelity taxonomy that occurs when a power struggle breaks out between political rivals who allege the other is violating the Constitution and neither is willing to budge.
The archetypal constitutional breakdown, embodying all three dimensions, was the secession crisis that led to the Civil War. By the late 1850s, the slave-based economy of the Southern states had become incompatible with the wage-based industries of the North. The Constitution effectively ceased to function as more territories sought admission to the union and the balance between slave and free states could no longer be maintained.
Some commentators point to lesser historical antecedents such as the disputed election of 1876 that resulted in the election of Rutherford B. Hayes and the end of Reconstruction; Franklin Delano Roosevelt’s conflict with the Supreme Court over the New Deal; and the Watergate scandal of Richard Nixon.
What all constitutional crises share is an attempt to impose a paradigm shift in the practice of governance. And while Trump is no intellectual powerhouse, his narcissism and obsession with revenge make him the perfect instrument for promoting transformative ideas masterminded by others. These include:
The unitary executive theory
Harkening back to Nixon’s infamous declaration that “when the president does it, that means it is not illegal,” the unitary theory was first articulated as an explicit doctrine during the Reagan administration. Among its early proponents were Reagan-era Attorney General Edwin Meese and Samuel Alito, then a deputy in the Office of Legal Counsel.
In a widely cited 2006 essay, professors Karl Manheim and Allan Ides of Loyola Law School in Los Angeles described the doctrine as a theory of presidential supremacy that undermines the constitutional scheme of checks and balances:
The theory of the unitary executive is anything but an innocuous or unremarkable description of the presidency. In its stronger versions, it embraces and promotes a notion of consolidated presidential power that essentially isolates the Executive Branch from any type of Congressional or judicial oversight.
The theory was also championed by Bill Barr during his time as an OLC deputy in the George H.W. Bush administration. In 2018, Barr, then in private practice, restated his views in an unsolicited memorandum he sent to the Justice Department, criticizing the work of Special Counsel Robert Mueller, writing:
The Constitution itself places no limit on the President’s authority to act on matters which concern him or his own conduct. … He alone is the Executive branch [and] the sole repository of all Executive powers.
In February 2019, Trump made Barr his attorney general. The following July, Trump gave a speech, asserting that under Article II of the Constitution [which sets forth the powers of the presidency], “I have the power to do whatever I want.” Barr remained in office, operating in effect as Trump’s personal consigliere until December 2020, when he resigned under duress after failing to find widespread fraud in the 2020 election.
The radical constitutionalism of Russell Vought
A more aggressive version of the unitary theory animated by religious zealotry has been crafted by Russell Vought, recently confirmed for a second stretch as head of the Office of Management and Budget.
Vought is a graduate of the Georgetown University Law Center, a self-described Christian Nationalist, and a founder of the Center for Renewing America, a right-wing think tank dedicated to “forging a consensus of America as a nation under God.” Most importantly, he was one of the prime architects of Project 2025, the Heritage Foundation-sponsored blueprint for Trump’s second term.
There is no question that Vought’s ideas have caught Trump’s attention.
In a 2022 article written for the Claremont Institute, Vought urgently called for the restoration of presidential power as originally envisioned by the founders and for the defeat of progressive “living constitutionalism,” the jurisprudential model that holds the meaning of the Constitution should evolve over time. What is needed, Vought contends, is a form of “radical constitutionalism” committed to bolstering presidential power and curbing the power of the courts to bring the separation of powers back into balance and harmony.
There is no question that Vought’s ideas have caught Trump’s attention, as shown by his second nomination to head OMB and by Trump’s persistent pandering to the religious right.
Common-good constitutionalism
Dissatisfied with both originalism and living constitutionalism, Harvard Law professor Adrian Vermeule has come up with an alternative known as “common good constitutionalism.” Rather than pursue the fruitless quest of trying to discern the original intent of the founders or undertaking an endless quest to expand individual rights, Vermeule argues that judges should promote the “common good.”
Vermeule distilled his theory in the April 2000 issue of the Atlantic, writing that the goal of common good constitutionalism
is not is not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well … to promote substantive moral principles that conduce to the common good, [such as] respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function … [and] a candid willingness to “legislate morality.”
Analytically, Vermeule fails to adequately define the common good, and to the extent he does in the article and elsewhere, his formulations are infused with the principles of “integralism,” an ideology that calls for subordinating the state to the values of the Catholic Church. Like proponents of the unitary executive theory, Vermeule calls for a strong president who pursues the common-good through “reasoned morality” for the benefit of all. Rather than rebelling, Vermeule suggests:
Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.
Politically, Vermeule has been linked to fellow integralist Vance. In a recent post on X, he praised Vance’s incendiary address on free speech and religious freedom delivered at the Munich Security Conference this month.
The Dark Enlightenment
Still operating on the fringes of mainstream discourse but growing in potency is the Dark Enlightenment, also known as “the neo-reactionary movement,” an informal futuristic community of political theorists, academics, internet bloggers and Silicon Valley investors who believe that democracy has run its course and is no longer compatible with individual liberty.
Most Americans will be loath to hand over their rights and freedoms to a new Napoleon.
The movement emerged in the 2000s, inspired by the work of British philosopher Nick Land and American software engineer Curtis Yarvin. Convinced that democracy inevitably leads to social decline, decadence and deep-state totalitarianism, proponents call for democracy to be supplanted by a technocracy run by a powerful CEO-style monarch. The movement reportedly has influenced the thinking not only of Vance, but also of Musk (note the dark MAGA hats sported of late), tech titan Peter Thiel and Michael Anton, a former speech writer for Rupert Murdoch, Rudy Giuliani and Condoleezza Rice. In January, Trump appointed Anton to serve as director of policy planning in the State Department.
The most important question, of course, is whether the new paradigms and the constitutional crisis they have helped spawn will succeed in ending democracy. Despite the wreckage produced by Trump’s early actions, there is cause for hope. Current polling shows Trump’s approvalratings are tanking. According to the most recent Gallup survey, Trump is the least popular president in more than 70 years.
It will take time for an effective opposition to form. But in the long run, most Americans will be loath to hand over their rights and freedoms to a new Napoleon. The worst thing we can do now is surrender.
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