The postal power of Congress: A study in constitutional expansion

by Lindsay Rogers

The consideration of Monroe’s message in the Senate was very favorable to the President; there was little disposition to criticize him for having announced his views prematurely,—possibly with the intention of warning Congress,—and no attempt was made to ascertain directly the Senate’s opinion on the constitutional powers of Congress. Indirectly, however, the Senate asserted its opinion through passing on a proposed amendment to the Constitution which was urged in response to Monroe’s intimation that this was the proper method of dealing with the matter.

From time to time several proposed amendments to the Constitution had been introduced, and these, unlike others advocated during “the same period of conflict between the broad and strict constructionists,”[221] aimed to increase the powers of Congress, and to take away the taint of usurpation which, at least in the minds of many, was considered as attaching to the road projects either under way or seriously contemplated. Amendments empowering Congress to construct roads and canals with the consent of the states were suggested in 1813 and 1814, and on December 9, 1817, following the advice of Monroe’s message, Senator Barbour introduced in the Senate such a resolution which made state consent necessary and provided that the appropriations should be distributed “in the ratio of representation which each state shall have in the most numerous branch of the national legislature. But the portion of any state may be applied to the purpose aforesaid in any other state.” When the resolution was reported, it was indefinitely postponed by a vote of 22 to 9.[222] This result showed that there was slight chance of passing any general road construction bill over the president’s veto, although some of the votes against the resolution were cast on the ground that Congress already had the power.

But the advocates of road construction were not to be denied. In compliance with a resolution, Calhoun, as secretary of war, submitted to the House of Representatives on January 14, 1819, a comprehensive report on roads and canals, the necessity for them, and a scheme for construction. Calhoun, however, “thought it improper under the resolution of the House to discuss the constitutional question.”[223]

The report was laid on the table[224] and although in January, 1822, the House Committee favored surveys for canals from Boston south along the Atlantic coast, and in the middle west, and a road from Washington to New Orleans, nothing became law with the exception of small appropriations for the Cumberland Road.[225] It was, however, an act for the preservation and repair of this road, passed by the House on April 29, 1822, and returned by the President on May 4, which caused him to follow his veto message with a comprehensive statement of the “Views of the President of the United States on the subject of internal improvements,”[226] the most elaborate constitutional discussion ever sent to the Capitol from the White House.

Monroe was of the opinion that Congress had the right to make appropriations for roads, with the consent of the states through which they were to pass, but that it did not have sovereign and jurisdictional rights to construct roads or to repair and keep them free from obstructions. This doctrine Von Holst calls a “quibble on words,” but “it has become an established one that Congress may appropriate money in aid of matters which the federal government is not constitutionally able to administer and regulate,” and in this respect, therefore, Monroe was correct.[227]

The advocates of construction and of efficient jurisdiction after the roads had been made, derived the authority of Congress from several clauses in the Constitution, among them the grant “to establish postoffices and postroads.” To this clause, Monroe gave an exhaustive treatment.

“What is the just import of these words, and the extent of the grant?” he asked. “The word ‘establish’ is the ruling term; ‘postoffices and postroads’ are the subjects, on which it acts. The question, therefore, is, what power is granted by that word? The sense, in which our words are commonly used, is that, in which they are to be understood in all transactions between public bodies and individuals. The intention of the parties is to prevail, and there is no better way of ascertaining it, than by giving to the terms used their ordinary import.”

Among enlightened citizens, Monroe went on, there would be no difference of opinion; “all of them would answer, that a power was thereby given to Congress to fix on the towns, court-houses, and other places, throughout our Union, at which there should be postoffices; the routes by which the mails should be carried from one postoffice to another, so as to diffuse intelligence as extensively, and to make the institution as useful, as possible; to fix the postage to be paid on every letter and packet thus carried to support the establishment; and to protect the postoffices and mails from robbery, by punishing those, who should commit the offence. The idea of a right to lay off the roads of the United States, on a general scale of improvement; to take the soil from the proprietor by force; to establish turnpikes and tolls, and to punish offenders in the manner stated above, would never occur to any such person. The use of the existing road, by the stage, mail carrier, or postboy, in passing over it, as others do, is all that would be thought of; the jurisdiction and soil remaining to the state, with a right in the state, or those authorized by its legislature, to change the road at pleasure.”

This interpretation, the message went on to declare, was supported by the modification of the postal grant in the Articles of Confederation, as it appeared in the Constitution. “Had it been intended to convey a more enlarged power in the Constitution,” said Monroe, “than had been granted in the Confederation, surely the same controlling term [establish] would not have been used; or other words would have been added, to show such intention, and to mark the extent, to which the power should be carried.... It would be absurd to say, that, by omitting from the Constitution any portion of the phraseology, which was deemed important in the Confederation, the import of that term was enlarged, and with it the powers of the Constitution, in a proportional degree, beyond what they were in the Confederation. The right to exact postage and to protect the postoffices and mails from robbery, by punishing the offenders, may fairly be considered, as incidents to the grant, since, without it, the object of the grant might be defeated. Whatever is absolutely necessary to the accomplishment of the object of the grant, though not specified, may fairly be considered as included in it. Beyond this the doctrine of incidental power cannot be carried.” Monroe then enters upon a consideration of what the colonists and framers of the Constitution understood to be comprehended in the postal power, and concludes:

“If the United States possessed the power contended for under this grant, might they not, in adopting the roads of the individual states for the carriage of the mail, as has been done, assume jurisdiction over them, and preclude a right to interfere with or alter them? Might they not establish turnpikes, and exercise all the other acts of sovereignty, above stated, over such roads, necessary to protect them from injury, and defray the expense of repairing them? Surely, if the right exists, these consequences necessarily followed, as soon as the road was established. The absurdity of such a pretension must be apparent to all, who examine it. In this way, a large portion of the territory of every state might be taken from it; for there is scarcely a road in any state, which will not be used for the transportation of the mail. A new field for legislation and internal government would thus be opened.”[228]