SamSo let me get this straight. Bear with me here.

Congress is investigating the improper firings of US Attorneys by the Bush administration. The charge is that the Bush Justice Department was colluding with the Bush Political Hack Department to such a degree that the Justice Department and the Political Hack Department became indistinguishable. To find out what happened, congressional committees issued subpoenas of documents and of persons: Harriet Miers, exposed as a thoroughly comical hack two years ago, and Sara Taylor, whose incredible hackery has only recently been put on display. The Bush administration has refused to comply with these subpoenas, invoking Executive Privilege in a thoroughly hacktastic fashion.

OK. But here’s the punchline: now, in order to enforce its subpoenas, Congress must trust that… the Bush Justice Department will decide to prosecute the Bush Political Hack Department for refusing to obey these subpoenas… which are intended to show to what extent the Bush Justice Department was as one with the Bush Political Hack Department.

Guess what comes next.

In a broadly worded legal opinion, the Justice Department has concluded that President Bush’s former top lawyer, and possibly other senior White House officials, can ignore subpoenas from Congress to testify about the firings of U.S. attorneys.

The three-page opinion raises questions about whether the Justice Department would prosecute senior administration officials if Congress voted to hold them in contempt for not cooperating with the investigation into the firing last year of eight top prosecutors….

Under the law, the U.S. attorney for the District of Columbia decides whether to pursue contempt of Congress cases. Though that official can exercise independent judgment, some legal experts said it might be hard to ignore the opinion from the legal counsel office, whose decisions are often viewed as controlling throughout the federal government.

Back on July 1, Pat Leahy was asked “whether he was confident that the U.S. attorney’s office in Washington would prosecute should Congress seek a criminal contempt citation.” Leahy replied that “it would be ‘very difficult for him not to.”’ One hopes that the good senator was merely being diplomatically optimistic for public consumption, because anyone who didn’t see this coming a mile away has had their head lodged firmly between their nether cheeks for the past seven and a half years. This administration will do anything it possibly can to avoid anything even remotely resembling accountability or oversight.

They’ve been able to get away with it for a lot of reasons, most of which are well known. But let me focus on one of the more subtle — and far-reaching. It is traditional in Unhinged Liberal Blogger Rants to declare that the administration has shredded, torn, violated, peed on, pooped on, showed contempt towards, blew their nose on, and otherwise disregarded the Constitution. As an Unhinged Liberal Blogger who specializes in invective and ranting, I have certainly said so myself.

But I think this emphasis may be misplaced. The modern GOP (and that’s where the trouble lies, with the party as a whole) has not so much violated the Constitution as they have exploited it. Take the war funding resolution mess, or indeed any attempt thus far by the Democratic Senate in particular to keep the Bushites from doing whatever the hell they want in Iraq, no matter how crazy or destructive. It is not a violation of the Constitution that is shielding the regime from having to face the music here — it is a perfectly constitutional mechanism, the filibuster. As Hilzoy pointed out in reference to their use of this tactic to defeat Jim Webb’s bill to limit the duration of troop deployments, the Republicans are of course being wildly hypocritical about the filibuster, and what they’re doing is of course contrary to the wishes of the great majority of Americans, not to mention scummy, but it’s not unconstitutional.

The real problem is not that the GOP is breaking the Constitution (or at least this is not always the problem), but that the Constitution is itself flawed. That much should be obvious in a moment like now, when a president who enjoys remarkably little public support (pdf) can carry on a war that nobody much cares for, either (the lunatic fringe that is the Right Wankosphere excluded). I mean, I have to think that if we had a European parliamentary system Bush would have cratered no later than last year and tanked a no confidence vote — and the new government could have begun withdrawing troops. In our system, there is just not much that can be done. Likewise, impeachment, while, yes, richly justified, just cannot happen because of American institutional realities. Our Constitution is just not set up to cope expeditiously with the modern GOP, for whom party loyalty at any cost counts for everything. This weakness was never so glaring as when the Republicans held the White House, House, and Senate: a GOP Congress was just never going to check or balance a Republican White House.

I think it’s important to emphasize this point because it’s all too easy to fall prey to a kind of deluded hope, that the Constitution can or will somehow always automatically save us. It can’t, and it won’t. The Constitution is not a suicide pact — and neither is it capable of guaranteeing democracy all by its lonesome. A lot of pleasant illusions have been stripped away during the Bush Years. Perhaps the last of these to go is the notion that a document from the 18th century, no matter how ingenious or durable, will necessarily of itself preserve our freedoms in the 21st.

In his review of Sicko, Ezra Klein observes that one of the reasons we are having so much trouble replacing our crappy health system with something better is the stubborn notion that merely because our system is American it is by nature superior to every other system anywhere else in the world. A similar attitude may prevent us, at least in part, from fixing even the more ludicrous and indefensible aspects of our political system, like, say, the Electoral College. Or our absurd and not particularly democratic voting system.

The point is that a commitment to democratic principles must supersede even a commitment to Constitutional principles. The Constitution is not a fetish object but an outline for a mechanism of governance, and susceptible to abuse even within its own structures.