James Joyner picks up on Mario Cuomo’s piece in the NYT in which Mario says that Senators Jim Webb and Hillary Clinton are off track when they want Congress to enact law demanding that the president “go before Congress to ask for a ‘declaration of war’ before proceeding with an attack against Iran or any other nation.”

But there is no need for this demand to be put into law, as the two Democrats and their colleagues are seeking to do, any more than there is need for legislation to guarantee our right of free speech or anything else protected by the Constitution.

Article I, Section 8 already provides that only Congress has the power to declare war.

Mario has more to say, of course, and James goes on to discuss how the warring powers of the executive and the Congress have been muddied since Thomas Jefferson’s administration.

But here’s the part of Mario’s piece that caught my eye:

Because the Constitution cannot be amended by persistent evasion, this mandate was neither erased nor modified by the actions or inactions of timid Congresses that allowed overeager presidents to start wars in Vietnam and elsewhere without making a declaration.

What??? “… the Constitution cannot be amended by persistent evasion…”???

Sure it can, Mario, it happens all the time! The earliest example I can think of was Justice John Marshall’s declaration in Marbury v. Madison that the Supreme Court could invalidate the actions of the other two branches of government. Yet the Constitution does not grant the Supreme Court any such authority. As Thomas Jefferson complained,

In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that ‘the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.’ If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

—Thomas Jefferson to Spencer Roane, 1819. ME 15:212

So Mr. Cuomo might want to think again.