Constitution of the United States/Art. I/Sec. 8/Clause 7 Post Offices

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Constitutional Law Treatise
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Constitutional Law Outline
Introduction
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Religion
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article I Legislative Branch

Section 8 Enumerated Powers

Clause 7 Post Offices

Clause Text
To establish Post Offices and post Roads;

Historical Background on Postal Power[edit | edit source]

The Articles of Confederation provided Congress with the "sole and exclusive . . . power of . . . establishing post offices."[1] During the Constitutional Convention, the Committee on Detail proposed similar language providing that "[t]he Legislature of the United States shall have the power . . . To establish Post-offices."[2] The Convention then adopted an amendment adding the phrase "and post roads"[3] to the Committee's draft.

The primary question raised in the early days of the Nation regarding the postal clause concerned the meaning of the word "establish" and whether it conferred upon Congress the power to construct new postal facilities and roads or only the power to designate existing buildings and routes to serve as post offices and post roads.[4] In 1845, the Court held that Congress, being "charged . . . with the transportation of the mails," could enter a valid compact with the State of Pennsylvania regarding the use and upkeep of the portion of the Cumberland Road lying in the state, but the Court did not pass upon the validity of Congress's authorization of the original construction of the road.[5] In 1855, however, Justice John McLean stated that the power to establish post roads "has generally been considered as exhausted in the designation of roads on which the mails are to be transported," and concluded that neither Congress's commerce power nor its power to establish post roads empowered Congress to construct a bridge over a navigable waterway.[6] The Court's 1876 decision in Kohl v. United States[7] ended the debate on the extent of Congress's power to establish post roads when the Court sustained a proceeding by the United States to appropriate a parcel of land in Cincinnati as a site for a post office and courthouse.

Power to Protect the Mails[edit | edit source]

The postal powers of Congress embrace all measures necessary to insure the safe and speedy transit and prompt delivery of the mails.[8] And not only are the mails under the protection of the National Government, they are, in contemplation of the law, its property. This principle was recognized by the Supreme Court in 1845 in holding that wagons carrying United States mail were not subject to a state toll tax imposed for use of the Cumberland Road pursuant to a compact with the United States.[9] Half a century later it was availed of as one of the grounds on which the National Executive was conceded the right to enter the national courts and demand an injunction against the authors of any widespread disorder interfering with interstate commerce and the transmission of the mails.[10]

Prompted by the efforts of Northern anti-slavery elements to disseminate their propaganda in the Southern states through the mails, President Andrew Jackson, in his annual message to Congress in 1835, suggested "the propriety of passing such a law as will prohibit, under severe penalties, the circulation in the Southern States, through the mail, of incendiary publications intended to instigate the slaves to insurrection."[11] In the Senate, John C. Calhoun resisted this recommendation, taking the position that it belonged to the States and not to Congress to determine what is and what is not calculated to disturb their security. He expressed the fear that if Congress might determine what papers were incendiary, and as such prohibit their circulation through the mail, it might also determine what were not incendiary and enforce their circulation.[12] On this point his reasoning would appear to be vindicated by Supreme Court decisions denying states the right to bar shipments of alcoholic beverages from other states.[13]

Power to Prevent Harmful Use of Postal Facilities[edit | edit source]

In 1872, Congress passed the first of a series of acts to exclude from the mails publications designed to defraud the public or corrupt its morals. In the pioneer case of Ex parte Jackson,[14] the Court sustained the exclusion of circulars relating to lotteries on the general ground that "the right to designate what shall be carried necessarily involves the right to determine what shall be excluded."[15] The leading fraud order case, decided in 1904, held to the same effect.[16] Noting that supplying postal facilities "is by no means an indispensable adjunct to a civil government," the Court held that the "legislative body in thus establishing a postal service may annex such conditions . . . as it chooses."[17]

Later cases first qualified these sweeping assertions and then overturned them, holding government operation of the mails to be subject to constitutional limitations. In upholding requirements that publishers of newspapers and periodicals seeking second-class mailing privileges file complete information regarding ownership, indebtedness, and circulation and that all paid advertisements in the publications be marked as such, the Court emphasized that these provisions were reasonably designed to safeguard the second-class privilege from exploitation by mere advertising publications.[18] Chief Justice Byron White warned that the Court by no means intended to imply that it endorsed the Government's "broad contentions concerning . . . the classification of the mails, or by the way of condition . . . ."[19] Again, when the Court sustained an order of the Postmaster General excluding from the second-class privilege a newspaper he had found to have published material in contravention of the Espionage Act of 1917, the claim of absolute power in Congress to withhold the privilege was sedulously avoided.[20]

A unanimous Court transformed these reservations into a holding in Lamont v. Postmaster General,[21] in which it struck down a statute authorizing the Post Office to detain mail it determined to be "communist political propaganda" and to forward it to the addressee only if he notified the Post Office he wanted to see it. Noting that Congress was not bound to operate a postal service, the Court observed that while it did, it was bound to observe constitutional guarantees.[22] The statute violated the First Amendment because it inhibited the right of persons to receive any information that they wished to receive.[23]

On the other hand, a statute authorizing persons to place their names on a list in order to reject receipt of obscene or sexually suggestive materials is constitutional, because no sender has a right to foist his material on any unwilling receiver.[24] But, as in other areas, postal censorship systems must contain procedural guarantees sufficient to ensure prompt resolution of disputes about the character of allegedly objectionable material consistently with the First Amendment.[25]

Exclusive Power Over Post Offices as an Adjunct to Other Powers[edit | edit source]

Cases such as Lamont v. Postmaster General,[26] involved attempts to close the mails to communications that were deemed to be harmful. A much broader power of exclusion was asserted in the Public Utility Holding Company Act of 1935.[27] To induce compliance with the regulatory requirements of that act, Congress denied the privilege of using the mails for any purpose to holding companies that failed to obey that law, irrespective of the character of the material to be carried. Viewing the matter realistically, the Supreme Court treated this provision as a penalty. Although it held this statute constitutional because the regulations whose infractions were thus penalized were themselves valid,[28] it declared that "Congress may not exercise its control over the mails to enforce a requirement which lies outside its constitutional province. . . ."[29]

Restrictions on State Power Over Post Offices[edit | edit source]

In determining the extent to which state laws may impinge upon persons or corporations whose services are used by Congress in executing its postal powers, the task of the Supreme Court has been to determine whether particular measures are consistent with the general policies indicated by Congress. Broadly speaking, the Court has approved regulations having a trivial or remote relation to the operation of the postal service, while disallowing those constituting a serious impediment to it. Thus, the Court held a state statute granting one company an exclusive right to operate a telegraph business in the state to be incompatible with a federal law that granted any telegraph company the right to construct its lines upon post roads.[30] The Court interpreted the federal statute to prohibit state monopolies in a field Congress was entitled to regulate in exercising its combined power over commerce and post roads.[31]

The Court also held an Illinois statute that, as construed by the state courts, required an interstate mail train to make a detour of seven miles in order to stop at a designated station to be an unconstitutional interference with Congress's postal power.[32] However, the Court held that a Minnesota statute requiring any intrastate train to stop at county seats "directly on its course, for a few minutes," was "a reasonable exercise of police power" and not "an unconstitutional interference with . . . the transportation of the mails of the United States."[33]

Local laws classifying postal workers with railroad employees for the purpose of determining a railroad's liability for personal injuries,[34] or subjecting a union of railway mail clerks to a general law forbidding any "labor organization" to deny any person membership because of his race, color or creed,[35] have been held not to conflict with national legislation or policy in this field. A state also may arrest a postal employee charged with murder while he is engaged in carrying out his official duties,[36] despite the interference pro tanto with the performance of a federal function, but it cannot punish a person for operating a mail truck over its highways without a valid state driver's license.[37]

  1. Articles of Confederation of 1781, art. IX ("The United States in Congress assembled shall also have the sole and exclusive right and power of . . . establishing or regulating post offices from one State to another, throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office . . .").
  2. Id.
  3. 2 The Records of the Federal Convention 308 (Max Farrand ed., 1911) (August 16, 1787). According to James Madison: "The power of establishing post-roads, 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." The Federalist No. 42 (James Madison).
  4. See Letter from Thomas Jefferson to James Madison (Mar. 6, 1796) ("Does the power to establish post roads, given you by Congress, mean that you shall make the roads, or only select from those already made, those on which there shall be a post?") in 3 The Works of Thomas Jefferson 223, 226 (Philip B. Kurland & Ralph Lerner eds., 1904). See also Robert G. Natelson, Founding-Era Socialism: The Original Meaning of the Constitution's Postal Clause, 7 Brit. J. Am. Legal Studies 1, 57 (2018) ("The suggestion was perhaps whimsical or mischievous, for there is no support for such an interpretation other than Jefferson's prestige. . . . founding-era sources show that 'establishing' a road included whatever was necessary for bringing it into existence: planning, laying out, clearing, surfacing, and so forth.").
  5. Searight v. Stokes, 44 U.S. (3 How.) 151, 166 (1845). In 1806, 2 Stat. 357, 358-359, without referring to the mails or the postal clause, Congress authorized the President to construct a road from Cumberland, Maryland, to Ohio, and "to obtain consent . . . of the state or states, through which . . . [it was] laid out."
  6. United States v. Railroad Bridge Co., 27 F. Cas. 686 (No. 16114) (C.C.N.D. Ill. 1855).
  7. 91 U.S. 367 (1875).
  8. Ex parte Jackson, 96 U.S. 727, 732 (1878). See In re Rapier, 143 U.S. 110, 134 (1892) ("It is not necessary that congress should have the power to deal with crime or immorality within the states in order to maintain that it possesses the power to forbid the use of the mails in aid of the perpetration of crime or immorality."); U.S. Postal Serv. v. Council of Greenburgh Civic Assn's, 453 U.S. 114 (1981) (sustaining the constitutionality of a law making it unlawful for persons to use, without payment of a fee (postage), a letterbox which has been designated an "authorized depository" of the mail by the Postal Service).
  9. Searight v. Stokes, 44 U.S. (3 How.) 151, 169 (1845).
  10. In re Debs, 158 U.S. 564, 599 (1895).
  11. Jackson, Andrew, Seventh Annual Message to Congress (Dec. 8, 1835), available at [1].
  12. Cong. Globe, 24th Cong., 1st Sess., 3, 10, 298 (1835).
  13. Bowman v. Chicago & Nw. Ry., 125 U.S. 465 (1888); Leisy v. Hardin, 135 U.S. 100 (1890).
  14. 96 U.S. 727 (1878).
  15. Id. at 732.
  16. Pub. Clearing House v. Coyne, 194 U.S. 497 (1904), followed in Donaldson v. Read Magazine, 333 U.S. 178 (1948).
  17. Pub. Clearing House, 194 U.S. at 506. See also United States v. Bromley, 53 U.S. 88 (1851) (upholding statute imposing fines on commercial carriers of mail for carrying non-mail letters not related to their cargo).
  18. Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913).
  19. Id. at 316.
  20. United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921). See also Hannegan v. Esquire, 327 U.S. 146 (1946) (denying the Post Office the right to exclude Esquire Magazine from the mails on grounds of the poor taste and vulgarity of its contents).
  21. 381 U.S. 301 (1965).
  22. Id. at 305 ("'The United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues.'") (quoting Justice Holmes in United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407, 437 (1921)) (dissenting opinion). See also Blount v. Rizzi, 400 U.S. 410, 416 (1971) (quoting same language). For a different perspective on the meaning and application of Holmes' language, see United States Postal Service v. Council of Greenburgh Civic Assn's, 453 U.S. 114, 127 n.5 (1981), although there, too, the Court observed that the postal power may not be used in a manner that abridges freedom of speech or press. Id. at 126. Additionally, first-class mail is protected against opening and inspection, except in accordance with the Fourth Amendment. Ex parte Jackson, 96 U.S. 727, 733 (1878); United States v. van Leeuwen, 397 U.S. 249 (1970). But see United States v. Ramsey, 431 U.S. 606 (1977) (border search).
  23. Lamont v. Postmaster General, 381 U.S. 301, 306-07 (1965). See also id. at 308 (concurring opinion). This was the first federal statute ever voided for being in conflict with the First Amendment. See also Bolger v. Youngs Drugs Products Corp., 463 U.S. 60 (1983) (holding unconstitutional a federal statute prohibiting the mailing of unsolicited advertisements for contraceptives); Roth v. United States, 354 U.S. 476, 493 (1957); United States v. Reidel, 402 U.S. 351, 356-357 (1971); Smith v. United States, 431 U.S. 291, 305 (1977) (upholding congressional authority under the postal clause to exclude obscene materials from the mail).
  24. Rowan v. Post Office Dep't, 397 U.S. 728 (1970).
  25. Blount v. Rizzi, 400 U.S. 410 (1971).
  26. 381 U.S. 301 (1965) ) (striking down statute authorizing the Post Office to detain mail that it determined to be "communist political propaganda" and to forward it to the addressee only if he notified the Post Office that he wanted it).
  27. 49 Stat. 803, 812, 813, 15 U.S.C. §§ 79d, 79e.
  28. Electric Bond & Share Co. v. SEC, 303 U.S. 419 (1938).
  29. Id. at 442.
  30. Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 1 (1878).
  31. Id. at 11.
  32. Illinois Cent. R.R. v. Illinois, 163 U.S. 142 (1896) (characterizing it as "a statute . . . which unnecessarily interferes with the speedy and uninterrupted carriage of the mails of the United States," and contrasting it with "a reasonable police regulation of the State"). Id. at 154.
  33. Gladson v. Minnesota, 166 U.S. 427 (1897).
  34. Price v. Pennsylvania R.R., 113 U.S. 218 (1895); Martin v. Pittsburgh & Lake Erie R.R., 203 U.S. 284 (1906).
  35. Railway Mail Ass'n v. Corsi, 326 U.S. 88 (1945).
  36. United States v. Kirby, 74 U.S. (7 Wall.) 482 (1869) ("the act of Congress which punishes the obstruction or retarding of the passage of the mail, or of its carrier, does not apply to a case of temporary detention of the mail caused by the arrest of the carrier upon an indictment for murder."). Id. at 484.
  37. Johnson v. Maryland, 254 U.S. 51, 57 (1920) ("the immunity of the instruments of the United States from state control in the performance of their duties extends to a requirement that they desist from performance until they satisfy a state officer upon examination that they are competent for a necessary part of them and pay a fee for permission to go on.").