Postal Clause

Original public meaning

The "establish" dispute Story later frames as "two opposite opinions" was foreshadowed, though not resolved, at the Convention itself — by a proposal the Framers rejected. On 14 September 1787, Benjamin Franklin moved to add a distinct power "to provide for cutting canals where deemed necessary" immediately after the post-roads clause. James Wilson seconded it and pressed the internal-improvements case further, arguing canals were "necessary to prevent a State from obstructing the general welfare." Roger Sherman and Rufus King objected on cost and sectional-jealousy grounds — King warned it would be read as a backdoor for a national bank, "a subject of contention" in Philadelphia and New York. Madison tried to broaden the motion into a general power to grant charters of incorporation; George Mason wanted it narrowed to canals alone out of fear of monopolies. The narrowed canal-only version failed 8 states to 3. (Records of the Federal Convention, Farrand ed., 2:615.) The Convention's post-roads text was therefore adopted against a live, rejected alternative that would have made federal infrastructure-building explicit — evidence for reading "establish" as designating routes and protecting the mails, not as an open construction power, though the rejected motion addressed canals specifically rather than roads.

Story's Commentaries (1833) confirm the clause drew almost no separate Convention discussion of its own text: the first draft read only "Congress shall have power to establish post-offices," and "post-roads" was added later by a 6-5 vote before the combined text "passed without opposition." Story frames the clause's importance as something the Founders themselves underestimated — The Federalist had "passed over" the power "with a single remark" calling it merely "harmless" and possibly "productive of great public conveniency," which Story, writing decades later with an 8,500-office postal system before him, found almost quaint. He also supplies the Confederation-era baseline: Congress had power only to establish post offices "from one state to another," with postage capped at actual expenses — a crippled version that produced just 75 post offices nationwide by 1789.

John Jay's 1788 letter to Washington adds a founding-era view on what "establish" should do once exercised: he argued the post office should carry newspapers to diffuse "Intelligence and useful Information," favored stagecoaches over post riders for efficiency, and urged that the office be "regulated by Law" and placed under executive superintendence rather than left to an ad hoc congressional committee, as it had been run to that point.

gap

No source in this batch directly addresses the modern First Amendment question in Lamont v. Postmaster General — whether Congress's power to decide what the mails carry is limited by speech guarantees once exercised. Jay's letter assumes broad congressional discretion over mail content without confronting a rights-based limit.

The "establish" dispute, in each side's own words

Story's Commentaries devote the whole of Chapter 18's opening to laying out both readings of "establish post-offices and post-roads" at length, not merely naming the dispute. The narrow reading treats the power as one of designation only:

"One maintains, that the power to establish post-offices and post-roads can intend no more, than the power to direct, where post-offices shall be kept, and on what roads the mails shall be carried." — Joseph Story, Commentaries on the Constitution § 1123 (1833)

The broad reading rests its case on the ordinary sense of the verb Congress actually chose, arguing that "establish" never carried the narrow sense the first view requires:

"There is no such known sense of the word 'establish,' as to 'direct,' 'designate,' or 'point out.'... The received general meanings, if not the only meanings of the word 'establish,' are, to settle firmly, to confirm, to fix, to form or modify, to found, to build firmly, to erect permanently." — Joseph Story, Commentaries on the Constitution § 1125 (1833)

Story's strongest practice-based evidence for the broad reading is that the narrow reading's own champion, President Jefferson, did not act on it as President:

"By the act of 21st of April, 1806, (ch. 41,) the president was authorized to cause to be opened a road from the frontier of Georgia, on the route from Athens to New-Orleans... The same remark applies to the act of 29th of March, 1806, (ch. 19,) 'to regulate the laying out and making a road from Cumberland, in the state of Maryland, to the state of Ohio.' Both of these acts were passed in the administration of President Jefferson, who, it is well known, on other occasions maintained a strict construction of the constitution." — Joseph Story, Commentaries on the Constitution § 1133 (1833)

Story does not resolve the exclusive-vs-concurrent question himself. He distinguishes it explicitly from the Enclave Clause's model of exclusive federal jurisdiction, reasoning that ousting state authority is necessary for a fort or a ceded seat of government but not for a road: "No general or exclusive jurisdiction is either required, or would be useful in regard to post-roads." — Joseph Story, Commentaries on the Constitution § 1141 (1833). He then closes the dispute deliberately unresolved, in the same both-sides posture he used for the "establish" question itself: "Such is a summary of the principal reasoning on each side of this much contested question. The reader must decide for himself, upon the preponderance of the argument." — Joseph Story, Commentaries on the Constitution § 1143 (1833)

Historical arc

Congress may protect mail transit, punish interference, and exclude materials that use postal facilities for fraud or crime. Ex parte Jackson (1878) upheld exclusion of lottery circulars, reasoning that the power to designate what the mails carry includes the power to decide what they exclude.

That power is not a general censorship power. Lamont v. Postmaster General (1965) struck down a law that detained "communist political propaganda" until the addressee affirmatively requested delivery. Once the government operates a postal system, it must respect the First Amendment and other constitutional guarantees.

State law can affect postal carriers only when it does not seriously impede federal postal policy. State monopolies or route requirements that burden mail delivery give way to federal law; ordinary police-power rules with remote effects may remain valid.