Post Offices and Post Roads – Constitution Article 1 §8.7

This week I’m studying Article 1 §8.6 of the Constitution. It’s about the Congress’ power to establish a postal system. I’m more interested in the Postal Service than the postal service, but I am interested in living in a country that works. In the wonderful anime series Kino’s Journey, a character who’s looking to settle down wanders into a nice, boring country where people live in peace and freedom and are welcoming to newcomers. His companion says it seems like a perfectly normal place, to which he replies, “A lot of people have to work very hard to make a place normal.”

Democracy is not for spectators; but to participate, you have to know the rules. That’s why I’m studying the Constitution, one clause at a time. I’m up to Article 1 §8.7.

Article 1 §8.7

Congress shall have the power

To establish Post Offices and post Roads;

Ah, it’s the beauty and curse of humans that the simplest things can generate disagreement. Does “establish” mean Congress can actually construct post offices and post roads, or only designate existing places and routes that should serve as post offices and post roads? Should the egg be cracked on the narrow or wide end? Petty, perhaps, but a decision must be made.

In 1855, SCOTUS was pretty sure Congress was limited to designating, and said so in United States v. Railroad Bridge Co. The debate was finally settled in 1876 by the decision in Kohl v. United States sustaining the appropriation of a parcel of land in Cincinnati as a site for a post office.

Protecting the Mail

Does that heading give you images of stagecoaches and attacking Apaches? It certainly seems like a stretch from arguments about whether Congress is actually allowed to build post offices to ‘protecting the mail.’ Maybe battling Apaches is, but SCOTUS has expanded Congressional powers based on this clause. Ex parte Jackson determined the postal powers of Congress embrace all measures necessary to insure the safe and speedy transit and prompt delivery of the mails.

There was also a rather distasteful debate about whether anti-slavery “propaganda” could be mailed in slave states. (Okay, this should be right up my alley, but I just… can’t.)

Postal Abuse

No, not picking on the mail man. There is a series of laws banning the mailing of publications designed to defraud the public or corrupt its morals. Going back to Ex parte Jackson 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.” But what about Publisher’s Clearinghouse?

The courts go back and forth about what counts as harmful materials and how that relates to individuals’ rights to see whatever information they want (or not to be exposed to stuff they don’t want). There ends up being a lot of specifics and special cases, and I can’t really sum it up in a single sentence or even paragraph. Let’s just say, if you want to mail something questionable, do some research.

States’ Rights

The Annotated Constitution says:

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.

Are you bored? I’m bored. Let’s talk about the other Postal Service.