Prior to the ratification our current Constitution in 1789, Congress had the power to establish and regulate post offices from one state to another, but the trafficking of the post within the state was subject to the state. States would then charge more for mail to travel to another state, causing competition and depressing the ability of the mail to efficiently travel across the country as needed.
Thus, the founders gave to Congress, in the new Constitution, the power: “to establish Post Offices and Post Roads“.
While this may, upon first reading, appear to be a simple, even straight-forward, enumerated power–it has stirred up numerous debates and conflicts over the course of American history.
Remember, the Constitution acts as government’s job description. It confines the government’s power by clearly defining its power. Anything not specifically enumerated by the Constitution to the federal government is not a federal power but rather a state power.
Consider then the phrase, “to establish Post Offices and Post Roads”.
First, Congress is given the explicit power to, by law, create, form, establish post offices across the country and a notable addition that the founders felt was important, to establish post roads across the country created with the purpose of transferring the mail.
Yet, even the understanding of establishing post roads became cause for debate:
“What was originally thought to be a rather simple and benign power soon turned controversial; there was disagreement over whether this power merely enabled Congress to direct where post offices should be located and on what roads mail should be carried, or whether it authorized Congress to construct and maintain roads and post offices within the states. Thomas Jefferson and James Monroe doubted whether the clause granted Congress the power to construct roads, whereas many in Congress asserted that it did have such power. In fact, most congressional enactments merely designated post roads, but in 1833, Justice Joseph Story declared in his Commentaries on the Constitution of the United States that the words ‘to establish’ encompass a power to create roads as well as to designate them.“The Heritage Guide to the Constitution
Notice that Congress erred on the side of less power when writing laws about post offices and post roads. Part of their debate, when creating laws to govern post offices and post roads, had to do with whether or not the Constitution actually imbued them with the power they were about to use. This alone should shame modern Congress and modern America for never even contemplating the enumerated powers in every day political conversation.
The debate led to an understanding by the Court that the Constitution gave Congress the power to actually create post roads, via the word, establish–much like they were given the power to create lower level courts when given the power to establish lower courts.
“A second point of contention was the question whether Congress could delegate the designation of post offices (most of which were in existing institutions, such as general stores or inns) and post roads. The First Congress debated the issue and resolved it with the Postal Service Act of 1792, which provided a detailed list of post offices and post roads, keeping the power in Congress’s hands and becoming a principal means for Members to patronize their home districts until the Postal Reorganization Act of 1970. That Act transformed the Post Office Department, which had been a tax-subsidized cabinet-level federal agency, and turned it into the United States Postal Service, an independent federal agency with a specific mandate to ‘conduct affairs . . . on a business-like basis’.”The Heritage Guide to the Constitution
The issue here was simple: the power to establish the postal service was given to Congress, was it a violation of their Constitutional authority to hand it off to an executive agency? In other words, the people delegated this power to Congress, could Congress delegate this power to an independent agency?
Whether or not they should have, they did.
“The validity of legislation prescribing what should be carried, and its weight and form, and the charges to which it should be subjected, has never been questioned. . . . The power possessed by Congress embraces the regulation of the entire Postal System of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded.“The Heritage Guide to the Constitution
So, as time progressed, the Court and Congress began to see Congressional power over the postal service in the United States as all encompassing.
And yet, could it be all encompassing? While the word establish empowers Congress to create post offices and post roads–which eliminates many of the chaotic issues present under the Articles of Confederation–does it empower Congress to then regulate these post offices and post roads. Should Congress merely create the offices and roads and leave the regulation of them to the states? The Constitution does not say Congress is empowered to “establish and regulate post offices and post roads” but merely to “establish them“.
“In In re Rapier (1892), the Court held that Congress has exclusive jurisdiction over the mail, which includes the right to prohibit the circulation of materials that are immoral and injurious, such as lottery tickets. The Court in Brennan v. United States Postal Service (1978) reaffirmed the federal government’s monopoly over the postal system; and in United States Postal Service v. Council of Greenburgh Civic Ass’ns (1981), the Court upheld a federal law prohibiting the placing of unstamped mail in home mailboxes…During World War I, the government’s power to ban incendiary and disloyal material figured largely in prosecutions under the Espionage Act of 1917. See Masses Publishing Co. v. Patten (1917). Later cases dealt with laws prohibiting the mailing of obscene material. Roth v. United States (1957); United States v. Reidel (1971)”The Heritage Guide to the Constitution
Ah, the inevitable growth in federal power. The constant stretching, reinterpreting and manipulation of the limitations the Constitution hands to the government. Perhaps these “stretches” to the postal service clause in the Constitution were and are necessary and forgivable. The country grew beyond what the founders could have ever imagined, increasing the need for a broader scope of power.
Regardless, these changes are still further evidence of government’s insatiable thirst for power. Ironically, in the past fifty years the postal service has suffered dramatically due to the increase in private postal services–which, inevitably functions more efficiently than a government run agency.
This enumerated power, as all enumerated powers are, is critical for Americans to both know and understand. It’s part of our government’s job description and we’re government’s employers.
The Liberty Belle