The postal power of Congress: A study in constitutional expansion

by Lindsay Rogers

[450] The point here made, to repeat, is that if Congress can legislate on grounds of public policy, its regulations must be connected with the use of the mails. The proposed legislation does not seem to fulfill this condition, for much, if not the greater part of the matter transmitted, would be harmless. It should be added, however (although the policy of the legislation is not here considered), that, conceding the power of Congress to act for the accomplishment of purposes not connected with the proper use of the mails, there are not unimportant economic objections to the proposed law. (Regulation of the Stock Exchange, p. 527 ff. and p. 585 ff.) These objections, I think, would have to be examined by the courts if Congress should be allowed the power which I have attempted to show it does not possess.

[451] 207 U. S. 463 (1907).

[452] Adair v. U. S., 208 U. S. 161 (1907); see also Keller v. U. S., 213 U. S. 138 (1908).

[453] McCulloch v. Maryland, 4 Wheat 316 (1819).

[454] Mugler v. Kansas, 123 U. S. 623 (1887).

[455] Houston v. Moore, 5 Wheat. 1 (1820).

[456] Fairbank v. U. S., 181 U. S. 283 (1901). In Union Bridge Co. v. U. S., 204 U. S. 364 (1907) this language was used: “If the means employed have no substantial relation to public objects which the government may legally accomplish, if they are arbitrary and unreasonable beyond the necessities of the case, the judiciary will disregard mere forms and interfere for the protection of rights injuriously affected by such illegal action. The authority of the courts to interfere in such cases is beyond all doubt.” See also Morgan v. Louisiana, 118 U. S. 455 (1886); Postal Tel. Co. v. Adams, 155 U. S. 688 (1895); Collins v. New Hampshire, 171 U. S. 30 (1898), and Henderson v. The Mayor of New York, 92 U. S. 259 (1876).

[457] Hoover v. McChesney, 81 Fed. Rep. 472 (1897). “The right to mail matter was considered in Teal v. Felton [12 How. 284 (1851)], but was not established as a right peculiar to citizens.” Lien, Privileges and Immunities of Citizens of the United States, p. 41 (Columbia University Studies in History, Economics and Public Law, vol. liv, no. 1). But it would not seem that this case considered such a subject.

[458] Heisler, Federal Incorporation, p. 86.

[459] Woodrow Wilson, Congressional Government, p. 12.