PREFACE The purpose of this essay is to trace the legislative and judicial history of the grant to Congress of the power "to establish postoffices and postroads," and to discuss the constitutionality of the proposals that, under this clause, federal control may be extended to subjects over which Congress has no direct authority. The essay is thus one in constitutional expansion, and does not consider the history or efficiency of the postoffice as an administrative arm of the government. A treatment of this subject, which has as yet received scant notice, I may some day attempt. Portions of Chapters IV and VII have appeared as articles on "Federal Interference with the Freedom of the Press," and "The Extension of Federal Control through the Regulation of the Mails," in the Yale Law Journal (May, 1914) and the Harvard Law Review (November, 1913) respectively. They have been thoroughly revised for publication in their present form. Chapter V appeared in substantially the same form in the Virginia Law Review (November, 1915). I am under great obligations to Professor W. W. Willoughby, not only for much direct assistance in the preparation of this essay, but for the inspiration of his productive scholarship. L. R. THE POSTAL POWER OF CONGRESS CHAPTER I INTRODUCTORY: THE ANTECEDENTS OF THE POWER It is, perhaps, not insignificant that The Federalist contains but a single reference to the power lodged in Congress "to establish postoffices and postroads." The writers of that incomparable collection of political papers which discussed in such exhaustive detail the disputed points of the proposed governmental frame-work for the United States of America, hardly needed to argue that the proposed delegation could not be deemed dangerous and was admittedly one of national concern. "The power of establishing postroads," said Madison, "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."1 Half a century later, Story prefaced the discussion of this power in his Commentaries, with the remark that, "One cannot but feel, at the present time, an inclination to smile at the guarded caution of these expressions, and the hesitating avowal of the importance of the power. It affords, perhaps, one of the most striking proofs, how much the growth and prosperity of the country have outstripped the most sanguine anticipations of our most enlightened patriots."2 At the time Story wrote, the postal power had, of course, already achieved a "commercial, political, intellectual and 1 The Federalist, No. 42. 2 Story, Commentaries on the Constitution, vol. iii, p. 22. private" importance, “of incalculable value to the permanent interests of the Union," vital both to the government and to individuals. But there was also the problem, lately acute, as to whether Congress had simply the power "to designate, or point out, what roads shall be mail roads, and the right of passage or way along them when so designated," or the larger power "to construct any roads which Congress may deem proper for the conveyance of the mail, and to keep them in due repair for such purpose." The remarkable benefits already achieved and the disputed extensions were the developments which excited Story's surprise at the unprophetic remark of The Federalist. But for some time the postoffice has been a common carrier and is now supplanting the express companies; it exercises banking functions not only for facilitating exchange but for savings deposits, and other collectivist activities are most strongly urged. The Supreme Court of the United States has upheld a broad power in Congress to prevent and punish interference with the carriage of the mails, and it is thus possible to make further extensions of federal authority. The right to incorporate railways and build postroads is firmly established, and assertions are made that it is both competent and advisable for federal authority to assume control of the telephone and telegraph systems and perhaps the railways themselves. It is, finally, argued that Congress may solve problems of purely local origin, and of primary sectional concern, through the simple expedient of denying the use of the mails unless certain regulative conditions are complied with. Viewing these extensions as either definitely upheld by the Supreme Court, or seriously urged, one cannot now but smile at the "guarded caution" of Story's description and his "hesitating avowal" that postroads might, with certain restrictions, be constructed under federal auspices. The distinguished jurist, however, wrote more prophetically than he knew, when he empha 3 Story, Commentaries on the Constitution, vol. iii, p. 26. 4 In Re Debs, 158 U. S. 564 (1895). |