Article I, Section 8, Clause 7:

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

The Articles of Confederation provided Congress with the “sole and exclusive . . . power of . . . establishing post offices.” 1 During the Constitutional Convention, the Committee on Detail proposed similar language providing that “[t]he Legislature of the United States shall have the power . . . To establish Post-offices.” 2 The Convention then adopted an amendment adding the phrase “and post roads” 3 to the Committee’s draft.

The primary question raised in the early days of the Nation regarding the postal clause concerned the meaning of the word “establish” and whether it conferred upon Congress the power to construct new postal facilities and roads or only the power to designate existing buildings and routes to serve as post offices and post roads.4 In 1845, the Court held that Congress, being “charged . . . with the transportation of the mails,” could enter a valid compact with the State of Pennsylvania regarding the use and upkeep of the portion of the Cumberland Road lying in the state, but the Court did not pass upon the validity of Congress’s authorization of the original construction of the road.5 In 1855, however, Justice McLean stated that the power to establish post roads “has generally been considered as exhausted in the designation of roads on which the mails are to be transported,” and concluded that neither Congress’s commerce power nor its power to establish post roads empowered Congress to construct a bridge over a navigable waterway.6 The Court’s 1876 decision in Kohl v. United States7 ended the debate on the extent of Congress’s power to establish post roads when the Court sustained a proceeding by the United States to appropriate a parcel of land in Cincinnati as a site for a post office and courthouse.

Footnotes

1

Articles of Confederation of 1781, art. IX ( “The United States in Congress assembled shall also have the sole and exclusive right and 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 . . .” ).

2

Id.

3

2 The Records of the Federal Convention 308 (Max Farrand ed., 1911) (August 16, 1787). According to James Madison: “The power of establishing post-roads, must in every view be a harmless power; and may perhaps, by judicious management, become productive of great public conveniency. Nothing which tends to facilitate the intercourse between the States, can be deemed unworthy of the public care.” The Federalist No. 42 (James Madison).

4

See Letter from Thomas Jefferson to James Madison (Mar. 6, 1796) ( “Does the power to establish post roads, given you by Congress, mean that you shall make the roads, or only select from those already made, those on which there shall be a post?” ) in 3 The Works of Thomas Jefferson 223, 226 (Philip B. Kurland & Ralph Lerner eds., 1904). See also Robert G. Natelson, Founding-Era Socialism: The Original Meaning of the Constitution’s Postal Clause, 7 Brit. J. Am. Legal Studies 1, 57 (2018) ( “The suggestion was perhaps whimsical or mischievous, for there is no support for such an interpretation other than Jefferson’s prestige. . . . founding-era sources show that ‘establishing’ a road included whatever was necessary for bringing it into existence: planning, laying out, clearing, surfacing, and so forth.” ).

5

Searight v. Stokes, 44 U.S. (3 How.) 151, 166 (1845). In 1806, 2 Stat. 357, 358–359, without referring to the mails or the postal clause, Congress authorized the President to construct a road from Cumberland, Maryland, to Ohio, and “to obtain consent . . . of the state or states, through which . . . [it was] laid out.”

6

United States v. Railroad Bridge Co., 27 F. Cas. 686 ( No. 16114) (C.C.N.D. Ill. 1855).

7

91 U.S. 367 (1875).