ArtI.S8.C7.2 Power to Protect the Mails

Article I, Section 8, Clause 7:

[The Congress shall have Power . . . ] To establish Post Offices and post Roads; . . .

The postal powers of Congress embrace all measures necessary to insure the safe and speedy transit and prompt delivery of the mails.1 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.2 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.3

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.” 4 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.5 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.6

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). back
Searight v. Stokes, 44 U.S. (3 How.) 151, 169 (1845). back
In re Debs, 158 U.S. 564, 599 (1895). back
Jackson, Andrew, Seventh Annual Message to Congress (Dec. 8, 1835), available at back
Cong. Globe, 24th Cong., 1st Sess., 3, 10, 298 (1835). back
Bowman v. Chicago & Nw. Ry., 125 U.S. 465 (1888); Leisy v. Hardin, 135 U.S. 100 (1890). back