The postal power of Congress: A study in constitutional expansion

by Lindsay Rogers

This portion of President Monroe’s message was referred to a special committee in the House of Representatives which reported on December 15, 1817, in an able document.[216] The problem, said the committee, involved “a great constitutional question on the one hand,” and was “intimately connected on the other, with the improvement, the prosperity, the union, and the happiness of the United States.” It was argued, in brief, that Congress had the power: “1. To lay out, improve, and construct postroads through the several states, with the assent of the respective states. 2. To open, construct, and improve military roads through the several states, with the assent of the respective states. 3. To cut canals through the several states, with their assent....”

Such powers were not based, it was contended, on a liberal construction of the Constitution, nor were they dangerous in tendency and capable of working an injury to the states, for there was no recognition of a right of eminent domain or of congressional supremacy in respect to jurisdiction. Considering specifically the extent of the postal power the committee said:

“That Congress, with the assent of the states respectively, may construct and improve their postroads, under the power ‘to establish postoffices and postroads’ seems to be manifest both from the nature of things and from analogous constructions of the Constitution. It has been contended, indeed, that the word establish, in this clause of the instrument, comprehends nothing more than a mere designation of postroads. But if this be true, the important powers conferred on the general government in relation to the postoffice, might be rendered in a great measure inefficient and impracticable.... If the power to establish confers only the authority to designate, Congress can have no right either to keep a ferry over a deep and rapid river for the transportation of the mails, or to compel the owners of a ferry to perform that service; and yet our laws contain an act, acquiesced in for more than twenty years, imposing penalties on ferrymen for detaining the mail and on other persons for retarding or obstructing its passage. It would be difficult to discover how this power of imposing penalties can be supported, either as an original or accessory power except upon principles of more liberal construction than those now advanced....

“The authority which is conferred by the Constitution to make all laws which shall be ‘necessary and proper’ for carrying into execution the enumerated powers, is believed to vest in the general government all the means which are essential to the complete enjoyment of the privilege of ‘establishing postoffices and postroads!’ Even without this clause of the Constitution the same principle would have to be applied to its construction, since according to common understanding the grant of a power implies a grant of whatever is necessary to its enjoyment....

“It is indeed from the operation of these words ‘necessary and proper’ in the clause of the Constitution which grants accessory powers, that the ‘assent of the respective states’ is conceived a prerequisite to the improvement even of postroads. For, however ‘necessary’ such improvements might be, it might be questioned how far an interference with the state jurisdiction over its soil, against its will, might be ‘proper,’ Nor is this instance of an imperfect right in the general government without an analogy in the Constitution; the power of exercising jurisdiction over forts, magazines, arsenals, and dockyards, depending upon previous purchase by the United States with the consent of the states.

“Admitting then, that the Constitution confers only a right of way, and that the rights of soil and jurisdiction remain exclusively with the states respectively, yet there seems to be no sound objection to the improvement of roads with their assent.”

In the long debate which followed this report upon the President’s message, the opinions expressed veered between ultra-conservative and ultra-liberal positions. A middle ground was taken by Clay, whose speeches are perhaps the best on the subject.[217] He was a stanch supporter of the committee’s report, contending “that the power to construct postroads is expressly granted in the power to establish postroads.” “If it be,” he said, “there is an end to the controversy.... To show that the power is expressly granted, I might safely appeal to the arguments already used to prove that the word establish, in this case, can mean only one thing,—the right of making.” According to Clay, “to establish justice” as used in the preamble of the Constitution, did not compel Congress to adopt the systems then existing. “Establishment means in the preamble, as in other cases, construction, formation, creation.”

When it is considered that “under the old Articles of Confederation, Congress had over the subject of postroads as much power as gentlemen allow to the existing government, that it was the general scope and spirit of the new Constitution to enlarge the powers of the general government, and that, in fact, in this very clause, the power to establish postroads is superadded to the power to establish postoffices, which was alone possessed by the former government,” the argument on this point is successfully maintained.

Clay contended that “it was certainly no objection to the power that these roads might also be used for other purposes. It was rather a recommendation that other objects, beneficial to the people, might be thus obtained, though not within the words of the Constitution.” For an illustration he pointed to the encouragement of manufactures under the power to levy taxes. Postroads could be devoted to “other purposes connected with the good of society.”[218] Construction completed, Clay argued, Congress had a jurisdiction “concurrent with the states, over the road, for the purpose of preserving it, but for no other purpose. In regard to all matters occurring on the road, whether of crime, or contract, etc., or any object of jurisdiction unconnected with the preservation of the road, there remained to the states exclusive jurisdiction.”[219]

At the conclusion of the debate several resolutions were offered and voted upon, only one receiving a majority. It recited “that Congress have power, under the Constitution, to appropriate money for the construction of postroads, military and other roads, and of canals and for the improvement of water courses.” In this matter Congress sanctioned the distinction between appropriation and construction. Three other resolutions were to the effect that Congress could build, generally, post and military roads; roads and canals necessary “for commerce between the states,” and canals for “military purposes.” These avowals of power, although they stated slightly different propositions, all intimated that the consent of the states would not be required, since each contained a proviso that private property should not be taken for public use without compensation,—a liberal attitude for this period of constitutional interpretation.[220] All of the resolutions, save the first, failed of passage by small majorities.