Lindsay Rogers

“ It is quite proper for Congress to build up an Index Expurgatorius just as it has done in the case of the mails, and to say that commerce shall not be “polluted” by the carriage of obscene literature, impure food, and made an agency to promote immorality. In every case, the power has been exerted on things, not on persons, and only once has there been even an apparent departure from this theory. Here the Supreme Court by a forced interpretation of the statute destroyed much of its force. ”

“ The decisions of the Supreme Court which have been quoted lead to no conclusion other than that any attempt on the part of Congress to place a previous restraint upon the press, or even to deny it postal facilities, for no discernible reason, would receive a judicial veto. The exclusion of lottery tickets, obscene matter, and other writings inimical to the public morals, has been clearly within the power of Congress, and legislation forbidding seditious and anarchistic publications when directed against the federal government, or banning them from the mails, would be constitutional. ”

“ The right of individuals to use the mails is not an absolute one; the legislative department of the government may impose reasonable restrictions on its exercise. It may say that a public convenience is not to be used to injure the morals of the citizens and may exclude such injurious matter, not with the view of making immorality criminal, but simply in order that the circulation may not be encouraged by the government. And to make this denial of facilities effective, Congress may punish violations. ”

“ There can be no question of the right of the federal government itself to construct highways for the transportation of the mail and to charge tolls for their use; nor can there be any doubt of its power to own and operate carriers, and incidentally to engage in business of a private nature if this increases the efficiency of the governmental agency.154 Even the fact that these private undertakings, disassociated from the carriage of the mails, would be by far the most important, would make no difference, according to the rule as announced by Chief Justice Marshall. ”

“ It has already been indicated that, while the postal power of Congress is plenary, extending to the classification and exclusion of articles presented for transmission through the mails, it is not without limits; that its exercise is restricted by provisions found in the Constitution itself,—the guarantees of a free press and immunity from unreasonable searches and seizures. There is, moreover, a further important limitation in that an arbitrary refusal of postal facilities would seem to be a denial of due process of law. ”

“ The idea of a right to lay off the roads of the United States, on a general scale of improvement; to take the soil from the proprietor by force; to establish turnpikes and tolls, and to punish offenders in the manner stated above, would never occur to any such person. The use of the existing road, by the stage, mail carrier, or postboy, in passing over it, as others do, is all that would be thought of; the jurisdiction and soil remaining to the state, with a right in the state, or those authorized by its legislature, to change the road at pleasure. ”

“ In reply to this argument, it might be alleged, that the postoffice imposes penalties on postmasters for ‘improperly’ detaining papers which come by the mail; and that the detention of the papers in question is not improper because their circulation is prohibited by valid state laws. Ascending to a higher principle, it might be plausibly alleged, that no law of the United States can protect from punishment any man, whether a public officer or citizen, in a commission of an act which the state, acting within the undoubted sphere of her reserved rights has declared to be a crime. ”

“ Great reliance is placed by the petitioner upon these views, coming as they did in many instances, from men alike distinguished as jurists and statesmen. But it is evident that they were founded upon the assumption that it is competent for Congress to prohibit the transportation of newspapers and pamphlets over postal routes in any other way than by mail; and of course, it would follow, that if with such a prohibition, the transportation in the mail could also be forbidden, the circulation of the documents would be destroyed and a fatal blow given to the freedom of the press. ”

“ It seemed that the nation would be sufficiently fortunate were it to be born with promise of maintaining existence, and it was neither possible nor advisable to scrutinize its powers of which future necessity or expediency might require an extension for the purposes of the nation. And, moreover, the growth of postal facilities, from their first manifestation up to the adoption of the Constitution was not sufficiently pronounced to augur a great deal for the future. ”

“ When the acts which create the obstruction are in themselves unlawful, the intention to obstruct will be imputed to their author, although the attainment of other ends may have been his primary object. The statute has no reference to acts lawful in themselves, from the execution of which a temporary delay to the mails unavoidably follows. All persons in the public service are exempt, as a matter of public policy, from arrest upon a civil process while thus engaged. Process of that kind can, therefore, furnish no justification for the arrest of a carrier of the mail.... ”

“ Of a different character is the strongly urged proposal that congressional control of the mails may be used as a valid means to compel the performance or non-performance of certain acts by persons, over whom there exists no direct federal authority. In other words, it is contended that Congress has a plenary and arbitrary power to determine who shall use the mails and what articles shall be carried, and therefore may impose any antecedent conditions, no matter how onerous or remote, upon the enjoyment of postal facilities. ”

“ That the power to establish postroads comprehends the power to construct (compensation being made to the states) , to levy tolls, and to repair and keep free from obstructions, has thus been assured by judicial decisions as well as by a fair interpretation of the words of the grant; and any fancied taint of unconstitutionality has been removed from laws which Congress passed under its plenary power “to establish postroads,” but which exceeded the limitations laid down by the strict constructionists, and did not come before the Supreme Court for a determination of their validity. ”

“ The circulation of newspapers is not prohibited, but the government declines itself to become an agent in the circulation of printed matter which it regards as injurious to the people. The freedom of communication is not abridged within the intent and meaning of the constitutional provision unless Congress is absolutely destitute of any discretion as to what shall, or shall not be carried in the mails, and compelled117 arbitrarily to assist in the dissemination of matter condemned by its judgment, through the governmental agencies which it controls. ”

“ The particular question to be decided was whether a contractor for carrying the mail between points within the state on a turnpike road had any right of exemption from the tolls, exacted under the company’s charter from other persons for the transit of their horses and stages. The court held that the tolls should be paid.
It recognized that the postal power “being necessarily exclusive, plenary and supreme, no state can constitutionally do, or authorize to be done, any act which may frustrate, counteract, or impair the proper and effectual exercise of it by national authority. ”

“ And on the basis of this principle, there is no reason to hold that the postal employees could not be punished for distributing the incendiary matter when it was their federal duty so to do. To be sure, as urged by Cushing and Tucker, the United States guarantees each state a republican form of government and protects it against domestic violence, but this does not mean that a law which is passed by Congress to apply uniformly to the whole country, and which may, on account of peculiar local conditions, aid insurrectionary movements in certain of the states, is thereby unconstitutional. ”

“ There are also, as I have indicated, a number of laws denying the use of the mails for the transmission of obscene or libellous writings, lottery tickets and advertisements, fraudulent matter, poisons, intoxicating liquors, explosives and similar articles which come under the ban of the police power. Furthermore, the complexity of political life and more numerous administrative problems in the service, have given rise to a separate class of offences; thus it is criminal for a member of Congress to be interested in a public contract, or a postal employee in a mail contract ”

“ It cannot at the present day be doubted that Congress under the power to regulate commerce among the several states, as well as to provide for postal accommodations and military exigencies, had authority to pass these laws. The power to construct, or to authorize individuals or corporations to construct, national highways and bridges from state to state, is essential to the complete control and regulation of interstate commerce. ”

“ The use of the mails may constitute a crime against the state, but the Circuit Court of Appeals for the Fourth Circuit147 has gone much farther than previous decisions and in a recent case declared: “It makes no difference that the United States Mail was used for the solicitation [of orders for intoxicating liquors] . The federal government does not protect those who use its mails to thwart the police regulations of a state made for the conservation of the welfare of its citizens. ”

“ But since, in consequence of the expansion of the country, the multiplication of its products, the invention of railroads and locomotion by steam, land transportation has so vastly increased, a sounder consideration of the subject has prevailed, and led to the conclusion that Congress has plenary power over the whole subject. Of course, the authority of Congress over the territories of the United States, and its power to grant franchises exercisable therein, are, and ever have been, undoubted. ”

“ Newspapers would be unable to circulate truth on matters of public concern if the published information as to stock quotations, although harmless in its nature, concerned an institution whose practices Congress was indirectly attempting to check. If the law were carefully confined to the prohibition of the circulation of publications which contained matter relating to gambling transactions, there would be no abridgment of the guarantee of the First Amendment. The exclusion would be similar to that of lottery advertisements, or matter designed to aid in defrauding recipients. ”

“ Postal Crimes.—The postal power, as Marshall pointed out in McCulloch v. Maryland,96 “is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the postroad, from one postoffice to another. And from this implied power has again been inferred the right to punish those who steal letters from the postoffice, or rob the mail. ”

“ For, as it is hardly necessary to remark, the denial of postal and interstate commerce facilities would be almost as efficacious as positive legislation; without using the mails and the channels of trade no business could successfully exist. If congressional control may be thus extended, every business and every individual needing to use the mails would become subject to federal regulation on the vague ground of public policy. ”

“ The reserved powers of the states would then exist only by the sufferance of Congress, and the cardinal theory of the American system—that the federal government is one of enumerated powers—would become a cynical fiction. ”

“ The Supreme Court has, however, permitted Congress, in the exercise of its taxing power, and less noticeably in its control of interstate commerce, to accomplish ends which were not included in the enumerated delegations of the Constitution. Thus, the tax on state bank notes which made their issue unprofitable was upheld on the ground that “the judiciary cannot prescribe to the legislative department of the government limitations upon the exercise of its acknowledged powers. ”

“ The cases, as well as the text-writers, seem to settle that the first amendment to the Federal Constitution announced no new principles; it must be interpreted in reference to its meaning at common law. The principal inhibition upon the legislature is in the enactment of previous restraints, but even here not absolutely. By the civil law of libel, as it was when the Constitution was adopted, the one publishing had to answer for personal wrongs, and the criminal law could punish for defamatory, obscene, blasphemous or seditious libels. ”

“ A law which divides those who use the mail into two general classes, all state corporations on the one hand, and all which are not incorporated by a state on the other, does not seem based upon any reasonable difference, either in the character of the person or in the kind of mail matter sent, which will make the classification more than arbitrary selection. ”

“ One of the methods urged for compelling federal incorporation of trading companies engaged in interstate commerce is the denial of postal facilities to state chartered concerns, and concerning this one of the abler advocates of such an end, says: “If we are correct in believing that due process requires the equal protection of the laws, an arbitrary selection or classification is beyond the power of Congress. ”

“ Congress has, moreover, on the same ground, conditionally excluded a variety of articles, such as poisons, explosives, inflammable materials, infernal machines, disease germs, and all compositions liable to hurt anyone or injure the mails. It is provided, however, that the postmaster general “may permit the transmission in the mails under such rules and regulations as he shall prescribe as to preparation and packing” of any of these articles, “not outwardly or of their own force dangerous or injurious to life, health and property.” Intoxicating liquors are absolutely excluded. ”

“ Professor Schofield is of the opinion (Freedom of the Press in the United States, p. 87) that “Liberty of the Press as declared in the First Amendment and the English common-law crime of sedition cannot co-exist”; but certain it is, that without impairing the freedom of the press, Congress may punish seditious utterances counseling the use of force or unlawful means, and falsely defaming public officials. ”