It is, moreover, a serious question whether arbitrary exclusions from the mails would not abridge the guarantee of due process of law. This question has never been before the Supreme Court of the United States, but a District Court has maintained that “the postal monopoly, if granted and exercised by a citizen or a corporation would, from the fact of its being a monopoly, make it imperative that all persons who paid the postal rates and conformed to the reasonable regulations of the postal service should have a common right to the use of the mails, and that, because of the fact of the monopoly thus granted. This right would be protected in the courts if the citizen or the corporation controlling the postal service should attempt to deprive him of it.”
The court then suggests that if the federal government should become the owner of all transportation lines and establish a monopoly, facilities would have to be extended to all, subject “to such general laws and regulations as to rates and the operation of the lines as might be enacted and established”; that the right to travel and ship freight “would be readily recognized as a property right in the citizen and one of which a particular citizen could not be deprived except by due process of law. We think the right to the use of the mails, though in a degree much less valuable, than the use of the transportation lines, would be equally a property right, and one which could not be taken away except by due process of law.”[457] The use of this property right would, of course, be subject to police regulations by Congress, to the extent that they have been upheld by the Supreme Court, or to which this argument concedes that they may go,—always applying, however, directly to the things mailed.
One of the methods urged for compelling federal incorporation of trading companies engaged in interstate commerce is the denial of postal facilities to state chartered concerns, and concerning this one of the abler advocates of such an end, says: “If we are correct in believing that due process requires the equal protection of the laws, an arbitrary selection or classification is beyond the power of Congress. A law which divides those who use the mail into two general classes, all state corporations on the one hand, and all which are not incorporated by a state on the other, does not seem based upon any reasonable difference, either in the character of the person or in the kind of mail matter sent, which will make the classification more than arbitrary selection. The constitutionality of this method, therefore, seems open to grave question.”[458] The conclusion of this writer, therefore, is that the constitutionality of the Pujo Bill would be open “to grave question” as denying due process of law.
Thus far the proposed extension of federal control by forbidding persons to use the mails, has been objected to as (in the suggested bill at least) abridging the freedom of the press, as not being a bona fide regulation of the mails, as attempting to obviate the objection of ultra vires by the use of indirect means, and as denying due process of law. There is a final consideration, which, while not legally controlling, is none the less important. Without holding strictly to a “literary theory”[459] of the Constitution one can regret the apparently growing tendency to disregard constitutional provisions and to sanction all legislation if, by any twisted interpretation, it can be upheld by the courts, although it may, as in the case of the postoffice proposals considered above, be well outside the fairly considered powers of the law-making body. This tendency shows an impatience of legal restraint, and a disinclination to follow what may be called constitutional morality. The phrase is that of Grote,[460] who, describing Athenian Democracy in the time of Kleisthenes, emphasized the necessity for “a perfect confidence in the bosom of every citizen, amidst the bitterness of party contest, that the forms of the constitution will be no less sacred in the eyes of his opponents than in his own.” Such constitutional morality he called “a natural sentiment” as it exists in the United States, but these words will no longer be true if Congress may extend its control in the manner proposed, without waiting for a grant of authority in the manner provided for by the Constitution.[461]
And if the courts should permit such extensions of federal control, enormous powers will, by judicial construction, be taken from the states and given over to the national legislature. For, as it is hardly necessary to remark, the denial of postal and interstate commerce facilities would be almost as efficacious as positive legislation; without using the mails and the channels of trade no business could successfully exist. If congressional control may be thus extended, every business and every individual needing to use the mails would become subject to federal regulation on the vague ground of public policy. The reserved powers of the states would then exist only by the sufferance of Congress, and the cardinal theory of the American system—that the federal government is one of enumerated powers—would become a cynical fiction.
TABLE OF CASES
| Page | ||
| Achison v. Huddleson, 12 Howard, 293 | 90 | |
| Adair v. United States, 208 U. S. 161 | 176 | |
| Adams v. The People, 1 N. Y. 173 | 147 | |
| American School of Magnetic Healing v. McAnnulty, 187 U. S. 94 | 58 | |
| Andrews v. United States, 162 U. S. 420 | 49 | |
| Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328 | 133 | |
| Bates & Guild Co. v. Payne, 194 U. S. 106 | 58 | |
| Battle v. United States, 209 U. S. 36 | 149 | |
| Blackham v. Gresham, 16 Fed. Rep. 609 | 43, 93 | |
| Bowman v. Chicago & Northwestern R. Co., 125 U. S. 465 | 145 | |
| Boyd v. United States, 116 U. S. 616 | 124 | |
| Brig Wilson, 1 Brockenborough, 423 | 113, 127 | |
| Burton v. United States, 202 U. S. 344 | 173 | |
| California v. Pacific Railroad Co., 127 U. S. 1 | 95, 152 | |
| Chae Chan Ping v. United States, 130 U. S. 581 | 108 | |
| Champion v. Ames, 188 U. S. 321 | 117, 169 | |
| Cleveland, P. & A. R. Co. v. Franklin Canal Co., 5 Fed. Cas. 1044 | 91 | |
| Cohens v. Virginia, 6 Wheaton, 264 | 136 | |
| Collins v. New Hampshire, 171 U. S. 30 | 178 | |
| Commonwealth v. Knox, 6 Mass. 76 | 131 | |
| Cooley v. Port Wardens, 12 Howard, 299 | 113 | |
| Crossley v. California, 168 U. S. 640 | 149 | |
| Debs, In re, 158 U. S. 564 | 10, 47, 151 | |
| Dickey v. Maysville, etc. Co., 7 Dana (37 Ky.), 113 | 86 | |
| Dunlop v. United States, 165 U. S. 486 | 49 | |
| Eastman v. Armstrong Byrd Music Co., 212 Fed. Rep. 662 | 56 | |
| Employers’ Liability Cases, 207 U. S. 463 | 176 | |
| Eyde v. Robertson, 112 U. S. 580 | 168 | |
| Fairbank v. United States, 181 U. S. 283 | 178 | |
| Fong Yue Ting v. United States, 149 U. S. 698 | 108 | |
| Golden v. Prince, 10 Fed. Cas. 542 | 113 | |
| Grand Jury, In re, 62 Fed. Rep. 834, 840 | 45 | |
| Grimm v. United States, 156 U. S. 604 | 49 | |
| Hanover Bank v. Moyses, 186 U. S. 181 | 114 | |
| Harmon v. Moore, 59 Maine, 428 | 135 | |
| Hayner v. State, 83 Ohio St. 178 | 147 | |
| Henderson v. The Mayor of New York, 92 U. S. 259 | 178 | |
| Hennington v. Georgia, 163 U. S. 299 | 130 | |
| Hippolite Egg Co. v. United States, 220 U. S. 45 | 170 | |
| Hoke v. United States, 227 U. S. 308 | 52, 113, 170 | |
| Hoover v. McChesney, 81 Fed. Rep. 472 | 125, 179 | |
| Houston v. Moore, 5 Wheaton, 1 | 177 | |
| Illinois Central R. Co. v. Illinois, 163 U. S. 142 | 132 | |
| Jackson, Ex parte, 96 U. S. 727 | 54, 97, 110, 114, 115–116, 118, 125 | |
| Keller v. United States, 213 U. S. 138 | 55, 176 | |
| Knowles v. United States, 170 Fed. Rep. 409 | 49, 50 | |
| Kohl v. United States, 91 U. S. 367 | 92 | |
| Lathrop v. Middleton, 23 Cal. 257 | 135 | |
| Leisy v. Hardin, 135 U. S. 100 | 146 | |
| Lewis Publishing Co. v. Morgan, 229 U. S. 288 | 98, 110, 121, 167–169 | |
| Lottery Case, see [Champion v. Ames]. | ||
| McCray v. United States, 197 U. S. 27 | 169 | |
| McCulloch v. Maryland, 4 Wheaton, 316 | 36, 40, 81, 177 | |
| Mississippi R. Commission v. Illinois C. R. Co., 203 U. S. 335 | 133 | |
| Missouri Drug Co. v. Wyman, 129 Fed. Rep. 623 | 58 | |
| Monongahela Navigation Co. v. United States, 148 U. S. 312 | 155 | |
| Morgan v. Louisiana, 118 U. S. 455 | 178 | |
| Mugler v. Kansas, 123 U. S. 623 | 177 | |
| Neagle, In re, 135 U. S. 1 | 108 | |
| Neil v. Ohio, 3 Howard, 720 | 90 | |
| Nelson v. State, 25 Texas App. 599 | 131 | |
| Newspaper Publicity Case, see [Lewis Publishing Co. v. Morgan.] | ||
| Osborn v. The Bank of the United States, 9 Wheaton, 738 | 152, 155 | |
| Palliser v. United States, 136 U. S. 257 | 53, 147 | |
| Patterson v. Colorado, 205 U. S. 458 | 102 | |
| Pennsylvania v. Wheeling Bridge Co., 18 Howard, 421 | 93 | |
| Penny v. Walker, 64 Maine, 430 | 135 | |
| Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1 | 33, 156 | |
| People v. Croswell, 3 Johns. Cas. (N. Y.) 337 | 100 | |
| Phalen v. Virginia, 8 Howard, 164 | 53 | |
| Postal Telegraph Co. v. Adams, 155 U. S. 688 | 178 | |
| Public Clearing House v. Coyne, 194 U. S. 497 | 49, 57 | |
| Rapier, In re, 143 U. S. 110 | 54, 98, 117, 118, 148 | |
| Regina v. Hicklin, L. R., 3 Q. B. 360 | 50 | |
| Reinach v. Cortelyou, 28 App. D. C. 570 | 58 | |
| Respublica v. Oswald, 1 Dallas, 319 | 102 | |
| Rhodes v. Iowa, 170 U. S. 412 | 146 | |
| Rose Co. v. State, 133 Ga. 353 | 148 | |
| Rosen v. United States, 161 U. S. 29 | 50 | |
| Rupert v. United States, 181 Fed. Rep. 87 | 127 | |
| Schutz v. Dalles Military Road Co., 7 Oregon, 259 | 90 | |
| Seabright v. Stokes, 3 Howard, 151 | 88 | |
| Siebold, Ex parte, 100 U. S. 371 | 114, 144 | |
| Slaughter House Cases, 16 Wallace, 36 | 102 | |
| State v. Delaye, 68 So. 993 | 146 | |
| State v. Norfolk & W. R. Co., 33 W. Va. 440 | 131 | |
| Swearingen v. United States, 161 U. S. 446 | 49, 50 | |
| Teal v. Felton, 12 Howard, 284 | 179 | |
| Tennessee v. Davis, 100 U. S. 257 | 144 | |
| Thomas v. Cincinnati, 62 Fed. Rep. 803 | 46 | |
| Trombley v. Humphrey, 23 Mich. 472 | 92 | |
| Turner v. Williams, 194 U. S. 279 | 120 | |
| Turnpike Co. v. Newlands, 15 N. C. 463 | 136 | |
| Union Bridge Co. v. United States, 204 U. S. 364 | 178 | |
| United States v. Barney, 3 Hughes’ Reports (U. S. C. C.) | 545, 133 | |
| United States v. Benedict, 165 Fed. Rep. 221 | 49 | |
| United States v. Bennett, 16 Blatchford, 343 | 50 | |
| United States v. Bott, 24 Fed. Cas. 1204 | 56 | |
| United States v. Boyle, 40 Fed. Rep. 664 | 50 | |
| United States v. Bromley, 12 Howard, 88 | 42 | |
| United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53 | 156 | |
| United States v. Chase, 135 U. S. 255 | 49 | |
| United States v. Clark, 25 Fed. Cas. 443 | 45 | |
| United States v. Clark, 23 Int. Rev. Rec. 306 | 135 | |
| United States v. Claypool, 14 Fed. Rep. 127 | 45 | |
| United States v. Cruikshank, 92 U. S. 542 | 102 | |
| United States v. Debs, 65 Fed. Rep. 210 | 46 | |
| United States v. Delaware & Hudson Canal Co., 213 U. S. 366 | 171 | |
| United States v. Demolli, 144 Fed. Rep. 363 | 48 | |
| United States v. Dempsey, 185 Fed. Rep. 450 | 50 | |
| United States v. De Mott, 3 Fed. Rep. 478 | 135 | |
| United States v. Easson, 18 Fed. Rep. 590 | 44 | |
| United States v. Erie R. Co., 235 U. S. 513 | 45 | |
| United States v. Gettysburg Electric Co., 160 U. S. 668 | 152 | |
| United States v. Green, 137 Fed. Rep. 179 | 127 | |
| United States v. Hall, 26 Fed. Cas. 75 | 42 | |
| United States v. Hall, 26 Fed. Cas. 79 | 102 | |
| United States v. Hart, 1 Peters’ C. C. 390 | 131 | |
| United States v. Harvey, 8 Law Reporter, 77 | 134 | |
| United States v. Hudson & Goodwin, 7 Cranch, 32 | 83, 108, 119 | |
| United States v. Inlots, 26 Fed. Cas. 482 | 92 | |
| United States v. Kendall, 5 Cranch (U. S. C. C), 275 | 28 | |
| United States v. Kennerley, 209 Fed. Rep. 119 | 50 | |
| United States v. Kimball, 26 Fed. Cas. 782 | 45 | |
| United States v. Kirby, 7 Wallace, 482 | 134 | |
| United States v. Kochersperger, 26 Fed. Cas. 803 | 41, 43, 93 | |
| United States v. Ling, 61 Fed. Rep. 1001 | 49 | |
| United States v. McCracken, 3 Hughes’ Reports, 544 | 135 | |
| United States v. Mills, 7 Peters’, 138 | 41 | |
| United States v. Moore, 104 Fed. Rep. 78 | 49 | |
| United States v. Musgrave, 160 Fed. Rep. 700 | 173, 175 | |
| United States v. Nathan, 61 Fed. Rep. 936 | 49 | |
| United States v. O’Donnell, 165 Fed. Rep. 218 | 49 | |
| United States v. Pearce, 2 McLean’s C. C. R. 14 | 41 | |
| United States v. Popper, 98 Fed. Rep. 423 | 49 | |
| United States v. Sears, 55 Fed. Rep. 268 | 45, 136 | |
| United States v. Stevens, 27 Fed. Cas. 1312 | 46 | |
| United States v. Stowell, 133 U. S. 1 | 43 | |
| United States v. Thayer, 209 U. S. 39 | 147 | |
| United States v. Thompson, 28 Fed. Cas. 97 | 41 | |
| United States v. United States Express Co., 5 Biss. 91 | 42 | |
| United States v. Warner, 59 Fed. Rep. 355 | 49 | |
| United States v. Wilson, 58 Fed. Rep. 768 | 49 | |
| United States v. Wilson, 1 Baldwin (U. S. C. C.), 78 | 40 | |
| United States v. Wood, 3 Wash. C. C. R. 440 | 41 | |
| Veazie v. Fenno, 8 Wallace, 533 | 168, 169 | |
| West Virginia v. Adams Express Co., 219 Fed. Rep. 794 | 147 | |
| Wilson v. Shaw, 204 U. S. 24 | 33 | |
| Zinn v. State, 83 Ark. 273 | 147 | |