This piece from the Harvard Crimson magazine was drafted by Harvey Mansfield, a conservative (gasp) professor there.  The article is a response to the excoriation the Crimson gave to many of President Bush's policies and interpretations of legality, in particular, the oft maligned "Unitary Executive Theory."

Here is the core argument:

"Yet the rule of law also has defects less obvious to us. Suppose the law is bad, then the rule of law is the rule of bad law. Think of the law requiring Rosa Parks to sit in the back of the bus. And a good law, meaning good in normal circumstances, may not be good in an emergency, when the country is at war or under attack. It may not even be good in a special case in ordinary times; this defect requires what used to be called equity and is now called “empathy.”  Moreover, when executing the law it is not enough to say “pretty please”—violence is sometimes necessary. Necessary: the executive deals especially with necessity as distinct from desirability."

I believe Mansfield is correct in his view on executive power. Executive power can and should be vigorous. This view is considered by many as dangerous, but it has always been such. Even the Roman Republic (which was a republic far longer than the US has been a nation) allowed power to go to one man in emergencies. Is this flawed? Perhaps, but no system can deal with all potentialities. Nor can the abstration of law.  Indeed the law is always going to be "behind the times" as the unexpected emerges.  To tie one's hands through an inflexible adherence to something that may well be outdated could well be suicidal.

Obviously, there must be limits to such power as this could easily become a subterfuge within which to hatch plots leading to despotism.  However, a balance must be struck so that we do not arbitrarily limit ourselves when all options, even unsavory ones, must be thoroughly vetted and not merely dismissed because it offends too many sesnsibilities.

As Mansfield asserts, "The Constitution intends that this debate never end, and it is naïve to think that one side should always win."