But legislation of the character urged by Jackson was not on all fours with the Sedition Act, for by that act the government was punishing publications which it deemed inimical to its own safety. The incendiary matter, however, concerned the states and only a portion of them; the power of Congress to prohibit it, therefore, was doubtful, unless the evil reached such proportions that the menace to the states was a menace to the federal government. To Calhoun it seemed also that the prohibition of circulation through the mails was tantamount to a prohibition of publication.
The right “to determine what papers are incendiary,” the report argued, and as such to “prohibit their circulation through the mail, necessarily involves the right to determine what are not incendiary and to enforce their circulation”; both were matters of state prerogative. And, if “consequently the right to protect her internal peace and security belongs to a state, the general government is bound to respect the measures adopted by her for that purpose, and to cooperate in their execution, as far as its delegated powers may admit, or the measure may require. Thus, in the present case, the slaveholding states having the unquestionable right to pass all such laws as may be necessary to maintain the existing relation between master and slave in those states, their right, of course, to prohibit the circulation of any publication or intercourse calculated to disturb or destroy that relation is incontrovertible.” The general government is bound, “in conformity to the principle established, to respect the laws of the state in their exercise, and so to modify its act as not only not to violate those of the stated, but as far as practicable, to cooperate in their execution.”
Simultaneously with the presentation of this report, Calhoun introduced a bill, framed in accordance with his views, making it unlawful for any postmaster to receive and put in the mail any publication addressed to a jurisdiction where its circulation was forbidden. It was made a crime to deliver such prohibited mail to any person not “duly authorized ... to receive the same” by the local authorities, and there was a further provision that the laws of the United States should not be allowed to protect any postmaster accused of violating local regulations. By this means, Calhoun thought to preserve the liberty of the press and hand the matter over to the states for their settlement.[309]
The constitutional questions involved in the report and law proposed gave rise to a debate of such importance that it has several times been referred to by the Supreme Court of the United States in passing on partially analogous matters.[310] Many different views were advanced as to the correct interpretation of the postal grant which at this time had received practically no consideration by the judiciary. Webster, for example, contended that the proposed law “conflicted with that provision of the Constitution which prohibited Congress from passing any law to abridge the freedom of speech or of the press. What was the liberty of the press?” he asked. “It was the liberty of printing as well as the liberty of publishing, in all the ordinary modes of publication; and was not the circulation of papers through the mails an ordinary mode of publication?... Congress might, under this example, be called upon to pass laws to suppress the circulation of political, religious, or any other description of publications which produced excitement in the states.” Finally, he argued, “Congress had not the power, drawn from the character of the paper, to decide whether it should be carried in the mail or not; for such decision would be a direct abridgment of the freedom of the press.”[311]
Clay argued to the same effect, considering the bill uncalled for by public sentiment, unconstitutional, and containing “a principle of a most dangerous and alarming character.”[312] Buchanan’s views, however, were different. “It was one thing [he said] not to restrain or punish publications; it was another and an entirely different thing to carry and circulate them after they have been published. The one is merely passive, the other is active. It was one thing to leave our citizens entirely free to print and publish and circulate as they pleased; and it was another thing to call upon us to aid in their circulation. From the prohibition to make any law ‘abridging the freedom of speech or of the press,’ it could never be inferred that we must provide by law for the circulation through the post office of everything which the press might publish.”[313]
Senator Davis of Massachusetts charged, quite properly, it seems to me, that the report and bill were in conflict, since “the report sets forth that Congress has no power to make a law to restrain the circulation of incendiary papers through the mail, because the post masters have no right to determine what is and what is not incendiary; and because to shut papers out of the mail, would be an invasion of the liberty of the press.” But the bill would have the United States adopt and enforce state laws prohibiting the circulation of incendiary papers, “having constitutional power so to do and being bound in duty so to do.”[314] Another difficulty, as Davis went on to say, was “that incendiary matter is anything unfavorable to slavery. The general principle urged by the Senator from Carolina is, that where the states have power to legislate, the United States is bound to carry into execution their laws. They have the power to prohibit the circulation of incendiary matter, and therefore Congress ought to aid that power.”
But to this “there are insurmountable difficulties. How and by whom, is this law to be executed? Who is to determine, and in what manner, whether the Constitution of Massachusetts, which declares that all men are born free and equal, or the Declaration of Independence ... touch the subject of slavery or are incendiary? Whoever holds this power may shut up the great channels of inter-communication; may obstruct the great avenues through which intelligence is disseminated.”[315]
The use of the mail was declared by Mr. Morris of Ohio to be “a reserved right, with which no law ought to interfere, and not a governmental machine which Congress can withdraw at pleasure or render nugatory by the acts of its officers.” Mr. King raised the question as to federal enforcement of circulation in the states against their will. It would depend, he said, on the character of the paper. “If it were a commercial letter ... or any other paper connected with the granted powers and social relations, as established by the Constitution, and not inconsistent with the reserved rights of the states, in that case its circulation might be enforced. If of a different character it could not be enforced, and the states whose acknowledged rights might be affected, could interfere and arrest the circulation.”[316]
This debate, although exhaustive, was inconclusive, and some of the opinions expressed seem, in the light of present day construction of the postal clause, almost absurd. Considerably changed, Calhoun’s bill came up for a vote on June 8, 1836, and failed of passage. In its amended form, the bill no longer required that postmasters know the laws of the places to which the mail they received was directed. Under a penalty of being removed from office, they were forbidden to deliver publications, the circulation of which was prohibited by local laws, and in the event that state regulations were not regarded, it was provided that “nothing in the acts of Congress shall be construed” so as to furnish immunity from prosecution.[317]
There is much to be said in favor of this bill as amended. To make their postal agents amenable to local laws as regards the distribution of certain matter is surely within the constitutional power of Congress, and the aim should constantly be for the federal government to legislate so that national and local statutes will be harmonized. “It must be kept in mind,” the Supreme Court has said, “that we are one people and that the powers reserved to the states and those conferred on the nation, are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral.”[318] In several instances this dictum of the Court has been effectuated.