The postal power of Congress: A study in constitutional expansion

by Lindsay Rogers

“It is obvious to say that, inasmuch as it is the constitutional obligation of the United States to protect each of the states against ‘domestic violence’ and to make provisions to ‘suppress insurrection’” it cannot be the right or duty of the United States or any of its officers “to promote, or be the instrument of promoting, insurrection in any part of the United States.”[387]

Reasoning thus, Cushing concludes “that a deputy postmaster or other citizen of the United States is not required by law to become, knowingly, the enforced agent or instrument of enemies of the public peace, to disseminate, in their behalf, within the limits of any one of the states of the Union, printed matter, the design and tendency of which are to promote insurrection in such state.” But at the outset, he said, any settlement of the particular case is involved in “a preliminary question of unsettled fact. The question is whether the contents of the particular newspaper had for their tendency and object to incite insurrection in the state of Mississippi.” There are questions also as to the private rights of the addressee and the penal obligations of the deputy postmaster. These are for the courts. They only can “determine the question of the deputy postmaster’s penal liability, whether on the side of the United States or of the state of Mississippi.” The attorney general thus comes to no absolutely definite conclusion, but the implication is very strong that there is no federal immunity from prosecution under the state law, and, conversely, that there can be no prosecution under federal law for neglect of duty or malfeasance.

To the same effect, but more clear cut, was the opinion of John Randolph Tucker sent to Governor Wise of Virginia on November 26, 1859.[388] The laws of Virginia provided that “if a postmaster or deputy postmaster know that any such book or writing [inciting the negroes to rebellion] has been received at his office in the mail, he shall give notice thereof to some justice, who shall inquire into the circumstances and have such book or writing burned in his presence; if it appears to him that the person to whom it is directed subscribed therefor, knowing its character, or agreed to receive it for circulation to aid the purposes of the abolitionists the justice shall commit such person to jail. If any postmaster or deputy postmaster violate this section, he shall be fined not exceeding $200.”

In his opinion, Tucker, as attorney general of the state, held the law to be entirely constitutional. It does not, he said, “properly considered, conflict with federal authority in the establishment of postoffices and postroads. This federal power to transmit and carry mail matter does not carry with it the power to publish or circulate....

“With the transmission of the mail matter to the point of its reception the federal power ceases. At that point the power of the state becomes exclusive. Whether her citizens shall receive the mail matter is a question exclusively for her determination....

“It is true that the postmaster is an officer of the federal government; but it is equally true that he is a citizen of the state. By taking a federal office he cannot avoid his duty as a citizen; and his obligation to perform the duties of his office cannot absolve him from obedience to the law of the Commonwealth....

“I have no hesitation in saying that any law of Congress impairing directly or indirectly this reserved right of the state is unconstitutional, and that the penalty of the state law would be imposed upon a postmaster offending against it, though he should plead his duty to obey such unconstitutional act of Congress.”

Tucker’s memorandum was sent to Postmaster General Holt, who cited Cushing’s opinion (which Tucker had not seen), and ruled against the supremacy of the federal law. “The people of Virginia,” said Holt, “may not only forbid the introduction and dissemination of such documents within their borders, but if brought there in the mails they may, by appropriate legal proceeding, have them destroyed. They have the same right to extinguish firebrands thus impiously hurled into the midst of their houses and altars that a man has to pluck the burning fuse from a bombshell which is about to explode at his feet.”

It would seem, however, that such reasoning, while careful and persuasive, is erroneous. At the time these opinions were rendered, the absolute supremacy of federal law, when constitutionally enacted, was not accepted without question. It is true that, prior to this, provision had been made for the removal, before trial, of a prosecution arising under the revenue laws of the United States, and also that federal judges should have power to grant writs of habeas corpus in all cases of a prisoner or prisoners in jail or confinement “where he or they shall be committed or confined on, or by any authority or law, for any act done, or omitted to be done in pursuance of a law of the United States, or any order, process or decree of any judge or court thereof.”[389]

To be sure, this was only a means of checking state action, but from the doctrine of federal supremacy it logically follows that it is not within the power of a state to punish acts done under authority of federal law. At the time the question of incendiary publications was acute, the Supreme Court had not decided the line of cases upholding the right of removal to federal courts and sanctioning the release of officers for acts done in pursuance of federal authority. These cases declared it to be “an incontrovertible principle that the government of the United States may, by means of physical force exercised through its agents, execute on every foot of American soil, the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent. This power to enforce its laws and to execute its functions does not derogate from the power of the states to execute its laws at the same time and in the same places. The one does not exclude the other, except where both cannot be executed at the same time. In that case the words of the Constitution itself show which is to yield. ‘This Constitution, and all laws which shall be made in pursuance thereof ... shall be the supreme law of the land.’”[390]