From the Lawton Constitution
By James Finck, Ph.D.
It’s amazing how much power seven little words strung together can have, especially when, on the surface, they seem rather benign. Yet Article I, Section 8, Clause 7 simply states that Congress has the power “To establish Post Offices and post Roads.”
The Constitution’s postal power was a holdover from the Articles of Confederation. The main difference was that the Constitution gave the federal government authority over post offices and added the power over post roads. From the beginning, however, there was uncertainty about what it meant for Congress to “establish” post roads. Did Congress merely have the authority to designate roads for transporting mail, or could it take the additional steps necessary to create and maintain roads required by a national postal system? This idea will be heightened with the creation of railroads.
Although the clause is brief, it has produced a number of important Supreme Court cases concerning the authority of the federal government. The Supreme Court’s interpretation of the clause demonstrates that Congress has broad control over the nation’s postal system, but that control is not unlimited. Two particularly important issues illustrate this balance. They deal with the extent to which states may regulate trains carrying the mail and the extent to which Congress may control what Americans are allowed to receive through the mail.
The railroad cases provide useful examples of how the Court attempted to balance federal postal authority with legitimate state power. As railroads became an important means of transporting mail, states sometimes passed laws affecting where and when trains had to stop.
In Illinois Central Railroad v. Illinois in 1896, the Court considered an Illinois law requiring an interstate mail train to make a seven-mile detour in order to stop at a particular station. The Court concluded that the state requirement interfered with Congress’s postal authority. The problem was not simply that the train was required to stop. Rather, the state was forcing a train carrying the nation’s mail to leave its established route and make a significant detour. Such a requirement could interfere with the speedy and efficient transportation of the mail.
The following year, however, the Court reached a different result in Gladson v. Minnesota. Minnesota required intrastate trains to stop briefly at county seats when those communities were already located directly along the train’s route. The Court upheld the requirement because it did not create the same kind of substantial interference. A train could stop for a short time without being forced miles away from its existing route. In other words, the Constitution did not make trains carrying the mail completely immune from state regulation.
The Supreme Court distinguished between state regulations that merely affected a train’s operation and those that substantially interfered with the federal government’s ability to transport mail.
The postal power also came into question when involving the First Amendment. The federal government attempted to use its postal power to exclude materials connected with lotteries, fraud, and other harmful activities. A man named Orlando Jackson sued in what became Ex parte Jackson in 1878. The Court recognized congressional authority over the mail and determined that if Congress could determine what the mail could carry, then it should have some authority to determine what it would not carry. At the same time, however, the Court also recognized that postal regulations had to operate within other constitutional protections, including protections against unreasonable searches of sealed mail.
A great example of the conflict between the Postal Clause and the First Amendment came during the presidency of Andrew Jackson, someone not afraid to explain federal power. In 1835, a massive abolitionist direct-mail campaign sparked a major constitutional crisis. When anti-slavery pamphlets flooded the South, local outrage culminated in a Charleston, South Carolina, mob seizing and burning federal mailbags. This violence forced a fundamental question for our young nation: Did Congress’s constitutional power over the mail include the authority to censor the political ideas carried along those routes?
The crisis divided federal leadership over how to interpret this enumerated power. Jackson urged Congress to use the Postal Clause to prohibit the circulation of abolitionist publications, proposing a federal ban on mailing “incendiary publications” to the South. However, Sen. John C. Calhoun fiercely opposed Congress having the authority to determine what publications could be classified as “incendiary.” Although a staunch defender of slavery, Calhoun also championed states’ rights and recognized that a government empowered to dictate what could be carried in the mail could eventually use that same power to suppress other forms of political expression.
Ultimately, Congress refused to pass a federal ban, but turned a blind eye to southern postmasters who continued to intercept and destroy abolitionist mail.
Finally, there is Lamont v. Postmaster General in 1965. Congress had authorized the Post Office to hold foreign mail identified as communist political propaganda rather than automatically delivering it. The intended recipient could receive the material, but only after requesting it. The Supreme Court struck down the law under the First Amendment. The problem was not simply that the government had classified certain political material as undesirable. The system placed a burden on people who wanted to receive information and required them to identify themselves as people wanting to obtain it. In this case, potentially identifying themselves to the government as people who wanted to receive communist political propaganda.
So, by itself, the Postal Clause does not seem too controversial, but when seen as conflicting between state and federal power or with the First Amendment, it becomes much more complicated.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at james.finck@swoknews.com.
