This piece has gotten a lot of commentary, and apparently the WSJ wants to make sure we all get to see it, so here it is — for when you need a scary story to tell around the campfire: The Case for the Strong Executive - pdf
This is not the first time that a strong executive has been attacked and defended, and it will not be the last. Our Constitution, as long as it continues, will suffer this debate–I would say, give rise to it, preside over and encourage it. Though I want to defend the strong executive, I mainly intend to step back from that defense to show why the debate between the strong executive and its adversary, the rule of law, is necessary, good and–under the Constitution–never-ending.
[...] Yet the executive subordinated to the rule of law is in danger of being subordinate to the legislature. This was the fault in previous republics. When the separation of powers was invented in 17th-century England, the purpose was to keep the executive subordinate; but the trouble was the weakness of a subordinate executive. He could not do his job, or he could do his job only by overthrowing or cowing the legislature, as Oliver Cromwell had done. John Locke took the task in hand, and made a strong executive in a manner that was adopted by the American Founders.
[...] Locke combined the extraconstitutional with the constitutional in a contradiction; besides saying that the legislature is “the supreme power” of the commonwealth, he speaks of “the supreme executive power.” Locke, one could say, was acting as a good citizen, bringing peace to his country by giving both sides in the Civil War a place in the constitution. In doing so he ensured that the war would continue, but it would be peaceful because he also ensured that, there being reason and force on both sides, neither side could win conclusively.
[...] The lesson for us should be that circumstances are much more important for free government than we often believe. Civil liberties are for majorities as well as minorities, and no one should be considered to have rights against society whose exercise would bring society to ruin. The usual danger in a republic is tyranny of the majority, because the majority is the only legitimate dominant force. But in time of war the greater danger may be to the majority from a minority, and the government will be a greater friend than enemy to liberty. Vigilant citizens must be able to adjust their view of the source of danger, and change front if necessary. “Civil liberties” belong to all, not only to the less powerful or less esteemed, and the true balance of liberty and security cannot be taken as given without regard to the threat. Nor is it true that free societies should be judged solely by what they do in quiet times; they should also be judged by the efficacy, and the honorableness, of what they do in war in order to return to peace.
Most of the criticism I’ve seen (for example, Glenn Greenwald’s The right’s explicit and candid rejection of “the rule of law”) is pretty damning of any argument that “the rule of law” is not supreme. However, I think that the problem with applying Mansfield’s argument to present circumstances is not his willingness to sacrifice that tenet of the American republic. Rather, it is the danger that an imperial presidency makes it too easy for the executive to employ his power to stifle the “debate” Mansfield cites in his opening paragraph as a necessary and ongoing element of the government. The excesses of Nixon and, IMHO, this administration are terrifying because of their apparent aim to limit the ability to conduct this conflict — it’s easy for an unscrupulous imperial executive to “win” conclusively, despite Mansfield’s assertion that such a win is not possible (see above).