The postal power of Congress: A study in constitutional expansion

by Lindsay Rogers

To the Petersburg resolutions, Kendall replied at some length, very conciliatingly, and pleaded that the discretion was not vested in him. “Having no official right to decide upon the character of papers passing through the mails,” he said, “it is not within my power by any ‘lawful regulation’ to obviate the evil of which the citizens of Petersburg complain. If any necessity exists for a supervision over the productions of the press which are transmitted by mail, all will agree that it ought not to be vested in the head of the executive department....

“For the present I perceive no means of relief except in the responsibilities voluntarily assumed by the postmasters through whose offices the seditious matter passes.”[384]

In a letter to Gouverneur, the postmaster at New York, who had exercised his discretion in detaining certain publications, Kendall expressed the same views but argued the constitutional problems at greater length. “As a measure of great public necessity,” he said, “you and the other postmasters who have assumed the responsibility of stopping these inflammatory papers, will, I have no doubt, stand justified in that step before your country and all mankind.” Perhaps also, he suggested, the abolitionists did not have their imagined clear legal right to the use of the mails for distributing insurrectionary papers. When the states became independent, he argued, “they acquired a right to prohibit the circulation of such papers within their territories; and their power over the subject of slavery and its incidents was in no degree diminished by the adoption of the federal Constitution....

“Now,” he asked, “have these people a legal right to do by the mail carriers and postmasters of the United States, acts, which, if done by themselves or their agents, would lawfully subject them to the punishment due felons of the deepest dye? Are the officers of the United States compelled by the Constitution and laws to become the instruments and accomplices of those who design to baffle and make nugatory the constitutional laws of the states,—to fill them with sedition, murder, insurrection,—to overthrow those institutions which are recognized and guaranteed by the Constitution itself?

“And is it entirely certain that any existing law of the United States would protect mail carriers and postmasters against the penalties of the state laws, if they shall knowingly carry, distribute or hand out any of these forbidden papers? ... It might be vain for them to plead that the postoffice law made it their clear duty to deliver all papers which came by mail. In reply to this argument, it might be alleged, that the postoffice imposes penalties on postmasters for ‘improperly’ detaining papers which come by the mail; and that the detention of the papers in question is not improper because their circulation is prohibited by valid state laws. Ascending to a higher principle, it might be plausibly alleged, that no law of the United States can protect from punishment any man, whether a public officer or citizen, in a commission of an act which the state, acting within the undoubted sphere of her reserved rights has declared to be a crime.

“Every citizen may use the mail for any lawful purpose. The abolitionists may have a legal right to its use for distributing their papers in New York, where it is lawful to distribute them, but it does not follow that they have a legal right to that privilege for such a purpose in Louisiana or Georgia where it is unlawful.”[385] Arguing in this manner, Kendall arrived at his conclusion that the postmasters should use their own judgment and act on their own responsibility.

The postmaster general’s letter has been so fully set forth because it presents, although it by no means solves, all the constitutional questions to which this situation gave rise. The disputed issues were destined never to come before the Supreme Court of the United States for a judicial consideration; they were, however, to be meagrely discussed on the floor of the Senate and twenty years later were to be passed upon by the Attorney General in an official opinion. Was the Virginia law, including postal officials, constitutional? Could they be punished for receiving and circulating the prohibited matter when to do so was required by federal law as a part of their official duty? Could a citizen of the state be punished for receiving mail of a certain character? Were the states competent to exclude from their borders publications calculated to stir up disaffection among the slave population?

Attorney General Caleb Cushing was called upon, in 1857, to pass upon some of these questions. The facts of the particular case presented to him were these: The postmaster of Yazoo City refused to deliver a newspaper for the “alleged cause that the same contained matter of which the tendency and object were to produce disaffection, disorder and rebellion among the colored population of the state of Mississippi; and that the delivery of the same by him would constitute a penitentiary crime according to the laws of that state.” The removal of the postmaster for malfeasance in office was requested since the act of July 2, 1836, provided punishment for postmasters who unlawfully detained the mail. On the other hand, the laws of Mississippi made it a crime, punishable by not more than ten years’ imprisonment, to bring into the state or circulate any printed matter “calculated to produce disaffection among the slave population.”[386]

Cushing declared the postal power to be “conferred in very imperfect terms.” The clause in the Constitution, he said, provides “for a means or incident without providing for the principal or end. Still we may take it for granted here, that, by this phrase, the states designed to communicate the entire mail power to the United States.” But, on the other hand, it is indisputable that “each state has, and must have, jurisdiction as regards the matter of insurrection or treason. To deny this would be to deny to the inhabitants of a state the power of self preservation, ... a right inalienable and imprescriptible.”

With this and the completeness of congressional power over the mails as premises, Cushing said the question was as follows: “Has a citizen of one of the United States plenary, indisputable right to employ the functions and the officers of the Union as the means of enabling him to produce insurrection in another of the United States? Can the officers of the Union lawfully lend its functions to the citizens of one of the states for the purpose of promoting insurrection in another state?