Article I, Section 8, Clause 7 — Post Offices

ArtI.S8.C7.1 Historical Background on Postal Power

The Articles of Confederation provided Congress with the “sole and exclusive . . . power of . . . establishing post offices.”¹ During the Constitutional Convention, the Committee on Detail proposed similar language providing that “[t]he Legislature of the United States shall have the power . . . To establish Post-offices.”² The Convention then adopted an amendment adding the phrase “and post roads”³ to the Committee’s draft.

The primary question raised in the early days of the Nation regarding the postal clause concerned the meaning of the word “establish” and whether it conferred upon Congress the power to construct new postal facilities and roads or only the power to designate existing buildings and routes to serve as post offices and post roads.⁴ In 1845, the Court held that Congress, being “charged . . . with the transportation of the mails,” could enter a valid compact with the State of Pennsylvania regarding the use and upkeep of the portion of the Cumberland Road lying in the state, but the Court did not pass upon the validity of Congress’s authorization of the original construction of the road.⁵ In 1855, however, Justice John McLean stated that the power to establish post roads “has generally been considered as exhausted in the designation of roads on which the mails are to be transported,” and concluded that neither Congress’s commerce power nor its power to establish post roads empowered Congress to construct a bridge over a navigable waterway.⁶ The Court’s 1876 decision in Kohl v. United States⁷ ended the debate on the extent of Congress’s power to establish post roads when the Court sustained a proceeding by the United States to appropriate a parcel of land in Cincinnati as a site for a post office and courthouse.

ArtI.S8.C7.2 Power to Protect the Mails

The postal powers of Congress embrace all measures necessary to insure the safe and speedy transit and prompt delivery of the mails.¹ And not only are the mails under the protection of the National Government, they are, in contemplation of the law, its property. This principle was recognized by the Supreme Court in 1845 in holding that wagons carrying United States mail were not subject to a state toll tax imposed for use of the Cumberland Road pursuant to a compact with the United States.² Half a century later it was availed of as one of the grounds on which the National Executive was conceded the right to enter the national courts and demand an injunction against the authors of any widespread disorder interfering with interstate commerce and the transmission of the mails.³

Prompted by the efforts of Northern anti-slavery elements to disseminate their propaganda in the Southern states through the mails, President Andrew Jackson, in his annual message to Congress in 1835, suggested “the propriety of passing such a law as will prohibit, under severe penalties, the circulation in the Southern States, through the mail, of incendiary publications intended to instigate the slaves to insurrection.”⁴ In the Senate, John C. Calhoun resisted this recommendation, taking the position that it belonged to the States and not to Congress to determine what is and what is not calculated to disturb their security. He expressed the fear that if Congress might determine what papers were incendiary, and as such prohibit their circulation through the mail, it might also determine what were not incendiary and enforce their circulation.⁵ On this point his reasoning would appear to be vindicated by Supreme Court decisions denying states the right to bar shipments of alcoholic beverages from other states.⁶

ArtI.S8.C7.3 Power to Prevent Harmful Use of Postal Facilities

In 1872, Congress passed the first of a series of acts to exclude from the mails publications designed to defraud the public or corrupt its morals. In the pioneer case of Ex parte Jackson,¹ the Court sustained the exclusion of circulars relating to lotteries on the general ground that “the right to designate what shall be carried necessarily involves the right to determine what shall be excluded.”² The leading fraud order case, decided in 1904, held to the same effect.³ Noting that supplying postal facilities “is by no means an indispensable adjunct to a civil government,” the Court held that the “legislative body in thus establishing a postal service may annex such conditions . . . as it chooses.”⁴

Later cases first qualified these sweeping assertions and then overturned them, holding government operation of the mails to be subject to constitutional limitations. In upholding requirements that publishers of newspapers and periodicals seeking second-class mailing privileges file complete information regarding ownership, indebtedness, and circulation and that all paid advertisements in the publications be marked as such, the Court emphasized that these provisions were reasonably designed to safeguard the second-class privilege from exploitation by mere advertising publications.⁵ Chief Justice Byron White warned that the Court by no means intended to imply that it endorsed the Government’s “broad contentions concerning . . . the classification of the mails, or by the way of condition . . . .”⁶ Again, when the Court sustained an order of the Postmaster General excluding from the second-class privilege a newspaper he had found to have published material in contravention of the Espionage Act of 1917, the claim of absolute power in Congress to withhold the privilege was sedulously avoided.⁷

A unanimous Court transformed these reservations into a holding in Lamont v. Postmaster General,⁸ in which it struck down a statute authorizing the Post Office to detain mail it determined to be “communist political propaganda” and to forward it to the addressee only if he notified the Post Office he wanted to see it. Noting that Congress was not bound to operate a postal service, the Court observed that while it did, it was bound to observe constitutional guarantees.⁹ The statute violated the First Amendment because it inhibited the right of persons to receive any information that they wished to receive.¹⁰

On the other hand, a statute authorizing persons to place their names on a list in order to reject receipt of obscene or sexually suggestive materials is constitutional, because no sender has a right to foist his material on any unwilling receiver.¹¹ But, as in other areas, postal censorship systems must contain procedural guarantees sufficient to ensure prompt resolution of disputes about the character of allegedly objectionable material consistently with the First Amendment.¹²

ArtI.S8.C7.4 Exclusive Power Over Post Offices as an Adjunct to Other Powers

Cases such as Lamont v. Postmaster General,¹ involved attempts to close the mails to communications that were deemed to be harmful. A much broader power of exclusion was asserted in the Public Utility Holding Company Act of 1935.² To induce compliance with the regulatory requirements of that act, Congress denied the privilege of using the mails for any purpose to holding companies that failed to obey that law, irrespective of the character of the material to be carried. Viewing the matter realistically, the Supreme Court treated this provision as a penalty. Although it held this statute constitutional because the regulations whose infractions were thus penalized were themselves valid,³ it declared that “Congress may not exercise its control over the mails to enforce a requirement which lies outside its constitutional province. . . .”⁴

ArtI.S8.C7.5 Restrictions on State Power Over Post Offices

In determining the extent to which state laws may impinge upon persons or corporations whose services are used by Congress in executing its postal powers, the task of the Supreme Court has been to determine whether particular measures are consistent with the general policies indicated by Congress. Broadly speaking, the Court has approved regulations having a trivial or remote relation to the operation of the postal service, while disallowing those constituting a serious impediment to it. Thus, the Court held a state statute granting one company an exclusive right to operate a telegraph business in the state to be incompatible with a federal law that granted any telegraph company the right to construct its lines upon post roads.¹ The Court interpreted the federal statute to prohibit state monopolies in a field Congress was entitled to regulate in exercising its combined power over commerce and post roads.²

The Court also held an Illinois statute that, as construed by the state courts, required an interstate mail train to make a detour of seven miles in order to stop at a designated station to be an unconstitutional interference with Congress’s postal power.³ However, the Court held that a Minnesota statute requiring any intrastate train to stop at county seats “directly on its course, for a few minutes,” was “a reasonable exercise of police power” and not “an unconstitutional interference with . . . the transportation of the mails of the United States.”⁴

Local laws classifying postal workers with railroad employees for the purpose of determining a railroad’s liability for personal injuries,⁵ or subjecting a union of railway mail clerks to a general law forbidding any “labor organization” to deny any person membership because of his race, color or creed,⁶ have been held not to conflict with national legislation or policy in this field. A state also may arrest a postal employee charged with murder while he is engaged in carrying out his official duties,⁷ despite the interference pro tanto with the performance of a federal function, but it cannot punish a person for operating a mail truck over its highways without a valid state driver’s license.⁸