The postal power of Congress: A study in constitutional expansion

by Lindsay Rogers

The Judiciary Act of 1789[319] adopted “the laws of the several states” as “rules of decision in trials at common law in courts of the United States in cases where they apply.”[320] Quarantine and pilotage regulations have been freely made by the states.[321] During Mr. Jefferson’s administration (and this was a precedent relied upon by Calhoun), Congress passed a law forbidding the transportation of free negroes from one state into any other where by local laws they were not permitted to reside.[322] The constitutionality of this act was sustained by Chief Justice Marshall.[323] So also, the congressional act providing for publicity of campaign expenditures forbids any candidate for Representative in Congress or for Senator of the United States to “use money in violation of the laws of the state in which he resides,”[324] and Congress has adopted and enforced, as its own, state laws governing elections to the House.[325] Finally, in spite of the constitutional requirement that bankruptcy laws must be uniform, Congress has permitted great variance among the several states, their regulations being enforced by the federal courts. To this there is no constitutional objection.[326]

There is, thus, a considerable body of analogous authority in support of Calhoun’s bill as amended. In its first form, the law he proposed was open to objection in that it required deputy postmasters to know the regulations of jurisdictions other than their own, and its effect was to exclude from the mails incendiary matter which the receiving postmaster thought would be considered objectionable at its destination. Under the amended act, however, there would be uniformity, since everything would be transmitted, the restriction being only as to circulation within the states. In administering a great governmental establishment, it should be the aim of Congress not to interfere with the exercise by the states of powers reserved to them.

But Calhoun’s argument that the denial of postal facilities was tantamount to a denial of the right of publication, is not well founded, as the Supreme Court of the United States has been at pains to point out; nevertheless it is true that, in some measure at least, the First Amendment insures a use of the postoffice.[327] Whether, if Congress had passed legislation excluding the incendiary literature from the mails, absolutely, the constitutional guarantee of a free press would have been violated, depends upon the character of the publications. If they were of such a seditious tendency that their menace of established institutions in the states was a menace to the federal government, if they fomented disorder and proposed to abolish slavery otherwise than by law, their utterance could have been prohibited, and the denial of postal facilities would have been constitutional. Or, if the objectionable publications did not affect the general government, but incited to arson, murder, etc., and were not simply political appeals, they could have been excluded, and there would have been no infringement of the freedom of the press. But the power of Congress did not extend to the denunciation of anything unfavorable to slavery; freedom of circulation could not be denied publications unless they fell within the limits stated above.

The views expressed in this debate on Calhoun’s bill were urged before the Supreme Court of the United States with considerable force when it was called upon to determine the constitutionality of the act excluding lottery tickets from the mails. The prevailing opinion in the senatorial debate had been, as we have seen, that Congress did not possess the power to prohibit the carriage in the mails of the incendiary publications, and to this citation of authority the Supreme Court replied:

“Great reliance is placed by the petitioner upon these views, coming as they did in many instances, from men alike distinguished as jurists and statesmen. But it is evident that they were founded upon the assumption that it is competent for Congress to prohibit the transportation of newspapers and pamphlets over postal routes in any other way than by mail; and of course, it would follow, that if with such a prohibition, the transportation in the mail could also be forbidden, the circulation of the documents would be destroyed and a fatal blow given to the freedom of the press. But we do not think that Congress possesses the power to prevent the transportation in other ways, as merchandise, of matter which it excludes from the mails. To give efficiency to its regulations and prevent rival postal systems, it may, perhaps, prohibit the carriage by others for hire, over postal routes, of articles which legitimately constitute mail matter, in the sense in which those terms were used when the Constitution was adopted,—consisting of letters, and of newspapers and pamphlets, when not sent as merchandise,—but further than this its power of prohibition cannot extend.”

And in making a bare denial of the charge that the law abridged the liberty of the press, the Court went on to say:

“In excluding various articles from the mail, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people, but to refuse its facilities for the distribution of matter deemed injurious to the public morals....

“Nor can any regulations be enforced against the transportation of printed matter in the mail, which is open to examination, so as to interfere in any manner with the freedom of the press. Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value. If, therefore, printed matter be excluded from the mails, its transportation in any other way cannot be forbidden by Congress.”[328]

In 1890 Congress extended the inhibition to “any newspaper, circular, pamphlet, or publication of any kind, containing any advertisement of any lottery,” and again the Supreme Court held that there had been no impairment of the freedom of the press. The Court said:

“We cannot regard the right to operate a lottery as a fundamental right infringed by the legislation in question; nor are we able to see that Congress can be held, in its enactment, to have abridged the freedom of the press. The circulation of newspapers is not prohibited, but the government declines itself to become an agent in the circulation of printed matter which it regards as injurious to the people. The freedom of communication is not abridged within the intent and meaning of the constitutional provision unless Congress is absolutely destitute of any discretion as to what shall, or shall not be carried in the mails, and compelled arbitrarily to assist in the dissemination of matter condemned by its judgment, through the governmental agencies which it controls. That power may be abused furnishes no ground for a denial of its existence, if government is to be maintained at all.”[329]