The continued assertion by the states of plenary authority and the failure of Congress to adopt any successful plan by which the Cumberland Road might be kept in repair, led to compacts of surrender under which the national authorities gave up all control over this highway. The meaning of these compacts was examined by the Supreme Court of the United States, and the plain implication of the decisions (although definite expressions were not necessary for the determination of the particular questions presented) is that Congress had the right to construct postroads and to charge tolls for their use by others than postal officials. This power had already been conceded in an illuminating opinion by the Kentucky Court of Appeals, and the subsequent decisions recognizing a right of eminent domain in the federal government and sanctioning the federal incorporation of railway and bridge companies, are conclusive authority that Congress had the power which the more liberal of its members asserted, but which the states and occasional executives denied. That the power to establish postroads comprehends the power to construct (compensation being made to the states), to levy tolls, and to repair and keep free from obstructions, has thus been assured by judicial decisions as well as by a fair interpretation of the words of the grant; and any fancied taint of unconstitutionality has been removed from laws which Congress passed under its plenary power “to establish postroads,” but which exceeded the limitations laid down by the strict constructionists, and did not come before the Supreme Court for a determination of their validity.
CHAPTER IV
Limitations on the Postal Power
Like all grants to Congress, the postal power is not unrestrained, but, as the Supreme Court has expressed it, the difficulty in setting limits beyond which it may not go, arises, “not from want of power in Congress to prescribe the regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with the rights reserved to the people, of far greater importance than the transportation of the mail.”[275] One, and perhaps the most important, of these rights is involved when restrictions are applied to periodical publications (particularly in reference to obscene matter and lottery tickets), and the question is at once raised as to the freedom of the press, guaranteed against abridgment by the second clause of the first amendment to the Federal Constitution.[276] The extent to which this limitation has been ignored is a moot question. On the one hand, we have the confident assertion of Von Holst[277] that “the freedom of the press has become a part of the flesh and blood of the American people to such an extent, and is so conditioned by the democratic character of their political and social life, that a successful attack upon it, no matter what legal authority it might have on its side, is impossible. Even the gigantic power of slavocracy gave up the battle as hopeless after the first onslaught.”
On the other hand, Hannis Taylor in his recent work on the American Constitution remarks that “little need be said as to the clause forbidding Congress to pass any law ‘abridging the freedom of the press,’ as that clause has been removed from the Constitution, so far as the mails are concerned, by the judgment rendered in 1892, In Re Rapier.”[278] And this extreme view may be said to have received some support from a recent decision of the Supreme Court which upheld the power of Congress to compel newspapers to publish certain information concerning their internal affairs, under penalty, for refusal, of being denied the advantages of low second class rates.[279] Which, then, is the correct view as to the inviolability or abrogation of this constitutional guarantee in relation to the mails?
Freedom of the Press.—In the Convention which framed the Federal Constitution, Mr. Pinckney, on August 20, 1787, submitted a number of propositions among which was a guarantee that “the liberty of the Press shall be inviolably preserved.”[280] The propositions were referred to the Committee of Detail, and when the question again came up for consideration on September 14, Mr. Pinckney and Mr. Gerry “moved to insert a declaration that the liberty of the Press should be inviolably observed.” This motion was lost, Mr. Sherman remarking that “it is unnecessary. The power of Congress does not extend to the Press.”[281]
During the discussion of the Constitution by the States, however, the absence of a guarantee of the freedom of the press was frequently adverted to. Speaking in the South Carolina House of Representatives, Mr. C. C. Pinckney said:
“With regard to the liberty of the press, the discussion of that matter was not forgotten by the members of the Convention. It was fully debated, and the impropriety of saying anything about it in the Constitution clearly evinced. The general government has no powers but what are expressly granted to it; it therefore has no power to take away the liberty of the press. That invaluable blessing which deserves all the encomiums the gentleman has justly bestowed upon it, is secured by all our state constitutions; and to have it mentioned in our general Constitution would perhaps furnish an argument, hereafter, that the general government had a right to exercise powers not expressly delegated to it.”[282]
A different theory was advanced by Hamilton, who, answering the objection that the Constitution contained no bill of rights, and treating specifically the absence of any provision safeguarding the press, asked: “What signifies a declaration that ‘the liberty of the press shall be inviolably preserved?’ What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer that its security, whatever fine declarations may be inserted in any Constitution respecting it, must altogether depend upon public opinion, and on the general spirit of the people and of the government....”[283]