The Volokh Conspiracy

As I briefly mentioned yesterday, my principal claim is that eighteenth-century decisions about postal policy -- legislative decisions -- shaped judge-made constitutional doctrine much later. To put it simply, the judges interpreting the Constitution in my examples were effectively constitutionalizing legislation; they took earlier principles that came from policy choices made by Congress and embedded them into constitutional law. But these were not ordinary policy choices; rather they were legislative choices about the character of an institution -- and, in particular, an institution that serves values we now think of as “constitutional.”

Consider the process as four steps: (i) Congress passes a statute; (ii) The statutory provisions give an institution certain attributes; (iii) Over time, social practice embeds those attributes into the institution; and (iv) The courts then takes those embedded attributes and write them, in different ways, into constitutional doctrine.

So, let me turn now to some specifics. As I said, I will eventually describe three constitutional doctrines: (1) First Amendment restrictions on government subsidies for speech (i.e., First Amendment “unconstitutional conditions”); (2) the First Amendment “right to receive” ideas; and (3) the Fourth Amendment principle of communications privacy.

My claim is that the origins of these particular doctrines can be found in eighteenth-century postal policy. In particular, I will briefly describe the development of three important features of the early American Post Office: (1) government subsidies for newspaper delivery; (2) the Post Office’s legal and practical monopoly over long-distance communication; and (3) privacy of correspondence.

In this post and the next two, I’ll connect each of these features with a corresponding constitutional doctrine. Today, I’ll connect the eighteenth-century policy decision to subsidize postal delivery of newspapers with the “unconstitutional conditions” doctrine. [I will refer to it simply as the “unconstitutional conditions” doctrine, even though the concept of “unconstitutional conditions” is much broader than the First Amendment Speech and Press Clauses.]

Early Postal History -- Government Subsidies for News

So, let’s start with government subsidies for newspapers. In the first of my two articles, I go into great detail about the nature of these subsidies and how they developed -- relying heavily on the historians Richard R. John and Richard Kielbowicz -- but here, let me just highlight a few key points:

1. The subsidies were for newspapers, and they were paid largely by letter writers, most of whom were merchants and traders conveying market information. In the early years, the Post Office was largely self-sustaining. So the subsidies were effectively a direct redistribution from some users of the postal network to others.

2. The subsidies were huge. The price to send a letter was anywhere from six to sixteen times the price to send a newspaper (depending on the distance), and yet, as I said, the Post Office broke even. Given those two facts, it shouldn’t take very sophisticated math to understand the basic gist of the subsidies. As one illustration of the extent of the subsidies, consider the fact that, in 1794, newspapers made up 70% of the weight of postal delivery but only 3% of postal revenues. This meant of course that letter writers -- providing a mere 30% of the weight -- were funding virtually the entire cost of the postal system.

3. The subsidies were premised in part on the ideology of republican government, the idea that if the people -- not the Crown and not Parliament -- are to be “sovereign,” the people need to be able to share information with each other, especially news about public affairs. Given the geographically dispersed nature of the federal republic, this information sharing required long-distance communication. The newspaper subsidies were thus a way in which the federal government affirmatively promoted republican values.

4. Though it was clear to everyone that newspapers generally communicated different content from letters (and generally consisted also of one-to-many, rather than one-to-one, communication), the subsidies were granted solely on the basis of the format of the communication -- printed as opposed to hand-written -- not the content. They were thus premised on a form of neutrality -- not complete neutrality, but a form of neutrality nonetheless.

5. Most important, the subsidies were written into the 1792 Post Office Act and are nowhere to be found -- explicitly, at least -- in the Constitution. Thus, the Second Congress enacted a law that embodied the principle that the government can affirmatively promote what we would today call “political speech,” as long as the government did so in a “neutral” way.

Constitutional Law - "Unconstitutional Conditions" Doctrine

Now, let me turn to the “unconstitutional conditions” doctrine. The question in an “unconstitutional conditions” case is whether -- and, if so, when -- the First Amendment constrains the government when it acts as an allocator of resources. Usually “resources” means money, but it doesn’t have to. Theoretically, the broader notion encompasses use of government property or even government employment. [On this last point, think of Justice Holmes’s famous quip that a person “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”]

Under current doctrine, “the government ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected … freedom of speech’ even if he has no entitlement to that benefit.” Bd. of Comm'rs, Wabaunsee County v. Umbehr, 518 U.S. 668, 674 (1996) (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972)). Like most First Amendment questions, though, the devil is in the details. In recent years, we’ve seen the problem come up in cases involving government funding of, among other things, the National Endowment for the Arts, family planning clinics, the Legal Services Corporation, public television stations, and public libraries.

The first time the Court addressed the problem, though, involved -- yes, you guessed it --postal subsidies. During the nineteenth century, the newspaper subsidies I described earlier had expanded to other types of periodicals. At the same time, however, clever entrepreneurs had used the lower rates in ways that failed to comport with the public purpose the subsidies were meant to further (e.g. publications devoted entirely to advertising). So Congress attempted to define eligibility for the subsidized rates in ways that would exclude some publications, thereby resulting in postal employees having more discretion to determine eligibility.

Eventually, in 1946, the Supreme Court rejected the Postmaster General’s attempt to deny the subsidized rates to the magazine Esquire because of its sexually explicit content. In doing so, what the Court effectively did was to constitutionalize the “neutrality” characteristic of the early postal subsidies. As with the history I described earlier, you can find the details of the relevant cases in the first of the two articles, but the key point is that the Court’s decision in the Esquire case depends entirely on (a) the institutional context of the Post Office, and (b) the nature of the subsidized rates, as evidenced by their historical development, a development that began with a statute and that ultimately depended on an embedding of those subsidies -- including via several subsequent statutes -- into the fabric of the Post Office itself.

Finally, note also that the Court created First Amendment doctrine that has a “counter-majoritarian” aspect to it -- remember that the Court is invalidating an action taken by a presidential appointee, the Postmaster General -- and yet is simultaneously relying on postal statutes, albeit long-standing statutes. Of course, the Court also uses the language of the First Amendment, the “higher law” that purports to give it power to invalidate the Postmaster General’s decision, but at the same time, the First Amendment principle upon which it relies comes from the original Congressional -- i.e., majoritarian -- decision, a decision that was embedded over time into the fabric of the Post Office itself. I’ll have more to say on this broader idea in my last post.

Tomorrow, though, I’ll discuss how the postal monopoly -- both legal and practical -- helped give us a constitutional right to read.