I am under great obligations to Professor W. W. Willoughby, not only for much direct assistance in the preparation of this essay, but for the inspiration of his productive scholarship.
L. R.
THE POSTAL POWER OF CONGRESS
CHAPTER I
Introductory: The Antecedents of the Power
It is, perhaps, not insignificant that The Federalist contains but a single reference to the power lodged in Congress “to establish postoffices and postroads.” The writers of that incomparable collection of political papers which discussed in such exhaustive detail the disputed points of the proposed governmental frame-work for the United States of America, hardly needed to argue that the proposed delegation could not be deemed dangerous and was admittedly one of national concern. “The power of establishing postroads,” said Madison, “must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency. Nothing which tends to facilitate the intercourse between the states can be deemed unworthy of the public care.”[1]
Half a century later, Story prefaced the discussion of this power in his Commentaries, with the remark that, “One cannot but feel, at the present time, an inclination to smile at the guarded caution of these expressions, and the hesitating avowal of the importance of the power. It affords, perhaps, one of the most striking proofs, how much the growth and prosperity of the country have outstripped the most sanguine anticipations of our most enlightened patriots.”[2]
At the time Story wrote, the postal power had, of course, already achieved a “commercial, political, intellectual and private” importance, “of incalculable value to the permanent interests of the Union,” vital both to the government and to individuals. But there was also the problem, lately acute, as to whether Congress had simply the power “to designate, or point out, what roads shall be mail roads, and the right of passage or way along them when so designated,” or the larger power “to construct any roads which Congress may deem proper for the conveyance of the mail, and to keep them in due repair for such purpose.”[3] The remarkable benefits already achieved and the disputed extensions were the developments which excited Story’s surprise at the unprophetic remark of The Federalist.