The Postal Clause

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

—Robert G. Natelson

Introduction

The history behind the Postal Clause explains its meaning to the Founders. This essay examines that history and then outlines subsequent developments during the early Republic and in the courts. It then delineates some constitutional questions arising from the clause, including the scope of the Necessary and Proper Clause and the nondelegation doctrine.

History Before 1787

The postal system authorized by the Constitution is the direct successor to the unitary British imperial post office, which extended to British North America. One can understand the language of the Postal Clause only in light of the preexisting imperial institution.¹ This institution functioned as a single integrated whole under a parliamentary statute enacted in 1711.² The system offered not merely carriage of letters and parcels, but also personal transportation and carriage of freight. It featured arterial and branch “post roads,” courier services, professional travel guides, vehicle rental, and other facilities. It also included a fleet of packet boats for international and coastal transportation and delivery.

A post road was an intercity highway. The name “post road” was due to the road’s punctuation by posts (also called stages). A post was what we now call a rest stop. It was a site for refueling man and beast; stabling, exchanging, and renting vehicles and horses; accepting letters and packages from an earlier courier and handing them to the next; and collecting tolls and payment for rentals and guides. Like many rest stops today, posts often featured taverns and inns. Unlike today’s rest stops, they often included newspaper offices. Each post was overseen by a post master or post mistress who carried out his or her official functions in a post office. Because of the integrated nature of the postal system, the grant of authority to “establish Post Offices and post Roads” was not two discrete powers (as a modern reader might expect), but one larger power.

The laws organizing the imperial postal system tell us what it meant to “establish” such a system and its components. The 1711 statute was entitled “An Act for Establishing a General Post-Office for all her Majesty’s Dominions.” Similarly, a 1767 law extending postal service to the Isle of Man authorized the postmaster general to “establish Post Offices and Post Roads” there.³

Among other provisions, the 1711 statute authorized new letter offices in Edinburgh, Dublin, and New York; provided for the appointment of personnel and disqualified them from politics; created monopolies, with delineated exceptions, in carriage of letters and parcels and in certain transportation-related services; created postal routes and authorized extensions; specified postal rates in detail; authorized the postmaster general to operate a fleet of packet boats; prescribed rules governing letters; regulated North American ferrymen; and granted certain “franking” privileges (free mail service). This statute establishing a postal service also defined offenses against the system, listed their punishments, and identified the courts in which violations were to be prosecuted. Finally, the law authorized the executive to promulgate further regulations.

The North American branch of the imperial service centered on a single post road running from Falmouth, Massachusetts (now Portland, Maine), to Savannah, Georgia. The northern half of this route was administered from an office in New York; the southern half, which included service to the Caribbean, was administered from an office in Charleston, South Carolina.

The Anglo-American postal system served four principal purposes: to improve the ability of officials to monitor the movement of persons and messages, to raise government revenue, to facilitate travel and communication on government business, and to assist trade and commerce. The modern “public service” vision of the post office was a later development.

In 1776, the American branch of the imperial postal service was transferred to the management of the Continental Congress. In 1781, the Articles of Confederation became effective, granting the Confederation Congress the power of “establishing or regulating post offices from one State to another, throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office.”⁴ Throughout this period, the modes and philosophy of postal operation remained mostly unchanged. Congressional management was very hands on, with little delegation to the postmaster general.

In 1782, Congress adopted an ordinance to govern the system.⁵ This ordinance, which largely duplicated the terms of British postal legislation, was amended twice.⁶ In 1787, a congressional committee proposed a revised ordinance, but it was not enacted.

The Constitutional Convention

The proceedings of the Constitutional Convention rarely referred to the Postal Clause. Several delegates emphasized the postal system’s revenue potential. Charles Pinckney’s plan for a Constitution specified that the national legislature “shall have exclusive power of establishing Post-Offices, and raising a Revenue from them.”⁷ In a June 11, 1787, speech, James Wilson of Pennsylvania said he thought the system “would be another substantial source of revenue.”⁸ On June 27, Luther Martin of Maryland also referred to it as a source of revenue.⁹

William Paterson’s “New Jersey Plan” would have given Congress power over “Stamps—Post-Office.”¹⁰ The Committee of Detail’s August 6 draft constitution stated, “The Legislature of the United States shall have the power . . . To establish Post-offices.”¹¹

On August 16, Elbridge Gerry of Massachusetts moved to add “and post-roads” to the Committee of Detail draft. John Francis Mercer of Maryland seconded the motion, and the Convention approved the amendment by a vote of six to five.¹² The dissent may have arisen because the comprehensive nature of a postal system seemed to render the additional wording unnecessary.

The Convention tabled three other proposed additions to the postal power. One was “[t]o regulate Stages on the post roads.” Another was “to provide for (public securities) for stages on post-roads.” The third was “to provide for cutting canals where deemed necessary.”¹³ Given the nature of a postal system, the first two additions would have been superfluous. The reason for rejecting canal-cutting is less clear.

The Ratification Debates

The two delegates who proposed adding “post-roads” to the Constitution, Elbridge Gerry and John Francis Mercer, opposed the Constitution during the ratification debates. As their proposal illustrates, the postal power was popular even among the Constitution’s opponents. They sometimes cited the post office as a power the central government ought to possess—as opposed to others it ought not to possess. The Constitution’s advocates constricted the scope of potential controversy by distinguishing post roads from other roads, representing that only the state governments would continue to exercise jurisdiction over the latter.

At the New York ratification convention, Samuel Jones offered an amendment that would have narrowed the scope of the term “establish” by depriving Congress of the power to make or repair highways without local state consent.¹⁴ This proposal was rejected, but the rejection did not prevent Jones from voting for the Constitution. Other objections to the postal power are hard to find.

Practice in the Early Republic

In 1792, the Federal Congress adopted An Act to establish the Post-Office and Post Roads within the United States.¹⁵ This law was squarely within the tradition of the institution’s parliamentary and congressional predecessors. The law designated post roads, set postal rates, described postal officers and provided for their compensation, affirmed a monopoly on the carriage of letters and parcels, regulated the transmission of mail bags to and from ship masters, set franking privileges, and defined postal offenses and fixed punishments. The 1792 statute delegated relatively little discretion to postal officials, although it did grant the postmaster authority to approve extensions in existing post roads for up to eight years and to regulate, with some exceptions, terms of employment within post offices.

In 1796, Thomas Jefferson claimed that the “safest” construction of the power to establish post roads would deny Congress the power to create new roads.¹⁶ Others also argued that the postal power did not include construction authority.¹⁷ The broad sweep of eighteenth-century statutes establishing postal systems suggests that this claim had little merit. Some have contended that the power to establish post roads did not include eminent domain authority. This contention is not well founded because when the Constitution was adopted, eminent domain power was acknowledged to be incidental to road-making and road-widening authority.¹⁸

Judicial Precedent

In McCulloch v. Maryland (1819), Chief Justice John Marshall suggested in dicta that Congress’s power to define postal crimes is derived from the Necessary and Proper Clause.¹⁹ Two modern cases on the scope of that clause have cited his language.²⁰ The Necessary and Proper Clause seems superfluous in this instance because eighteenth-century practice shows that defining postal crimes was within the ambit of establishing postal systems.

Elsewhere, the Supreme Court has recognized the broad scope of establishing a postal system. Ex Parte Jackson (1877) held that the Postal Clause encompasses regulation of the country’s entire postal system, including decisions governing what may and may not be mailed.²¹ Ex Parte Rapier (1892) sustained a ban on mailing lottery materials,²² Masses Pub’g Co. v. Patten (1917) upheld a ban on mailing seditious material during wartime,²³ and both Roth v. United States (1957) and United States v. Reidel (1971) held that Congress may bar obscene material from the mails.²⁴ Although the Supreme Court has recognized that the postal power is subject to the limits in the Bill of Rights, obscene matter is not protected by the First Amendment, so postal officials may bar it if they can do so without violating the Fourth Amendment.

Other cases have held that Congress may make enforceable compacts with states for allocation of post road repair costs,²⁵ prohibit placing non-mailed material in letter boxes,²⁶ and maintain a monopoly on letter delivery.²⁷

Open Questions

• Several recent Supreme Court decisions have addressed the scope of the Necessary and Proper Clause. Some have cited Chief Justice Marshall’s view that the power to define postal crimes derives from that clause. As we have seen, however, the Postal Clause itself authorizes such measures. If the Court finally recognizes that fact, this may encourage a narrower scope for the Necessary and Proper Clause.
• From time to time, the postal service has explored or engaged in entrepreneurial activities seemingly unrelated to mail delivery. A proper understanding of the scope of the Postal Clause as originally understood might be of assistance in resolving court challenges to those activities.
• It is unsettled how probative early postal legislation is on the extent to which Congress may sub-delegate its delegated power to executive branch agencies. This issue might raise concerns under the nondelegation doctrine. British legislation is not useful because Parliament exercised sovereign rather than delegated power and was unconstrained by relevant constitutional limits. However, the Confederation Congress’s 1782 ordinance might be indirectly probative.

1. Where not otherwise cited, the historical discussion in this essay comes from Robert G. Natelson, Founding-Era Socialism: The Original Meaning of the Constitution’s Postal Clause, 7 Br. J. Am. Legal Studies 1 (2018). ↩︎
2. Post Office (Revenues) Act 1710, 9 Anne c. 10 (1711). ↩︎
3. Post Office Offences and Isle of Man Postage Act 1767, 7 Geo. 3, c. 50 (1767), § 5. ↩︎
4. Articles of Confederation, art. IX. ↩︎
5. 23 J. Cont. Cong. 670–78 (Oct. 18, 1782). ↩︎
6. Id. at 688–89 (Oct. 28, 1783); id. at 880 (Dec. 24, 1782). ↩︎
7. 3 Farrand’s 607. ↩︎
8. 1 Farrand’s 205. ↩︎
9. Id. at 442. ↩︎
10. 3 Farrand’s 612. ↩︎
11. 2 Farrand’s 167–68. ↩︎
12. Id. at 308. ↩︎
13. Id. at 322, 328, 615. ↩︎
14. 2 Elliot’s 406. ↩︎
15. Act of Feb. 20, 1792, ch. 1, 1 Stat. 232. ↩︎
16. Letter from Thomas Jefferson to James Madison (Mar. 6, 1796), https://perma.cc/FSU3-SU4E. ↩︎
17. Letter from Thomas Jefferson to James Madison (Mar. 6, 1796), https://perma.cc/Q8LY-ME5W. ↩︎
18. Robert G. Natelson, Did the Constitution Grant the Federal Government Eminent Domain Power?, 19 Fed. Soc’y Rev. 88 (2018). ↩︎
19. 17 U.S. 316, 385 (1819). ↩︎
20. United States v. Comstock, 560 U.S. 126, 136 (2010); Sabri v. United States, 541 U.S. 600, 605 (2004). ↩︎
21. 96 U.S. 727 (1877). ↩︎
22. 146 U.S. 110 (1892). ↩︎
23. 246 F. 24 (1917). ↩︎
24. 354 U.S. 476 (1957); 402 U.S. 351 (1971). ↩︎
25. 44 U.S. 151, 180 (1845). ↩︎
26. 453 U.S. 114 (1981). ↩︎
27. 439 U.S. 1345 (1978). ↩︎