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CHAPTER VII.

ON THE IMPLIED POWER TO EXCLUDE "OBSCENE" IDEAS FROM THE MAILS.1

Syllabus of the Argument: The Power to create a postal system implies the power to pass all laws “necessary and proper" to the end of executing the power to establish post offices and post roads, but it does not authorize Congress under the pretext of creating and maintaining post offices to make the postal system a means to the accomplishment of ends not entrusted to the care of Congress. The very creation of a postal system necessarily involves a determination of the gross physical characteristics of that which is to be carried or excluded and therefore implies the power to determine such qualities. A like implication cannot be made in favor of a power to determine what are mailable ideas, because a differential test of mail matter, based upon the opinions transmitted through the mails, or the psychological tendencies of such opinions upon the addressee of the mails, or a differential test based upon an idea which is not actually transmitted, but is suggested by one that is transmitted, bears no conceivable relation to the establishment of post offices or post roads for the transmission of physical matter only.

It may be admitted that the power granted implies the power to preclude the use of the mails as an essential element in the commission of a crime otherwise committable, and over which Congress has jurisdiction (such as fraud and gambling), within the geographical limits of its power. But it is claimed that the power of Congress is limited to the use of means which are a direct mode of execution of the power to establish post offices and post roads, or some other power expressly granted, and it cannot, under the pretence of regulating the mails, accomplish objects which the Constitution does not commit to the care of Congress. Such an unconstitutional object is the

1Central Law Journal, V. 65, p. 177, Sept. 6, 1907.

effort of Congress, under the pretext of regulating the mails, to try to use the mails as a means to control the psycho-sexual condition of postal patrons.

The present postal laws against "obscene" literature, as the same are judicially administered, make the mailability of matter depend not only upon the so-called "obscenity" of that which is actually transmitted through the mails, but also upon ideas not actually transmitted, but according to their potential capacity for suggestiveness to the prurient, though the words and sentiments in themselves are free from objection. The question is, has Congress the implied power to make such regulations? Three thousand lawyers have been employed by the defendants in as many cases, and none of these have thought it worth while to question the existence of such a power.

This discussion involves only two clauses of the constitution, viz: The power "to establish post offices and post roads" and the authority "to make all laws necessary and proper" to the establishment of post offices and post roads. It has become the statement of an axiom to say that "the national government possesses no powers but such as have been delegated to it."2 "Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be whether it is properly an incident to an express power and necessary to its execution. If it be, then it may be exercised by congress. If not, congress cannot exercise it." The constitution nowhere expressly confers upon congress the power legislatively to discriminate between "moral" and "immoral" opinions.

IS THE IMPLIED POWER TO REGULATE UNLIMITED?

I now momentarily waive the contention that no such qualities belong to any opinions. The question then is, has congress the implied power to create a "moral" censorship over the opinions which may be transmitted through the mails, which implied power, if it exists, must arise wholly from the power to maintain post offices and post roads? The power to establish a postal system and to make all "necessary and proper" laws incident thereto, undoubtedly implies the unavoidable exercise

'Gilman v. Philadelphia, 70 U. S. 713-725; Martin v. Hunter's Lessee, 1 Wheat. 804-826; M'Culloch v. Maryland, 4 Wheat. 405; Pacific Ins. Co. v. Soule, 7 Wall. 444; United States v. Cruikshank, 92 U. S. 542.

'Story's Commentaries on the Constitution.

of the power to determine the gross physical characteristics of the matter to be transmitted and excluded. But does it follow that in other particulars there is any implied power to regulate the contents of the mails, and if so, is it unlimited? Has con- X gress the power to say that nothing at all be carried which is not written or printed upon paper produced at a particular factory, and to penalize the transmission of otherwise undistinguishable paper coming from a rival factory? Clearly not. If the paper in all its physical characteristics is undistinguishable, a discriminating judgment based upon its different manufacturers, who themselves bear precisely the same relationship to the government and its postal system, cannot be a "necessary and proper" power impliedly existing in congress, because a decision upon that question is not necessary to either the establishment or maintenance of post offices and post roads, nor of any other power expressly delegated to the United States. To assert the contrary is to make the control of postal regulations a political prize, to be used in securing a monopoly in the manufacture of paper, and such an evil possibility is not to be tolerated, or called into being by any judicial process of unnecessarily creating implied power. When it is "necessary and proper" as an incident to any other expressed grant of power, it is possible that the postal system, and the mode of its regulation, by necessary implication, could be made subservient thereto. Thus congress has undoubted power to pass many criminal laws, and might, perhaps, prescribe deprivation of mail privileges as a penalty to be inflicted upon conviction, or it probably could prohibit the use of the mails as an instrument directly contributing an essential factor in the actual commission of such other actual crime, within the power of congress to create. But does it follow that therefore congress also has the power arbitrarily to deny the use of an established postal service to all citizens who bear the name of "Smith," or who do not believe in Christian science, or do not approve of a protective tariff? Clearly not. Because a decision based arbitrarily upon the name of the postal patron, or upon his characteristics of opinion merely, is not "necessary and proper" to the establishment of post offices and post roads, nor to the exercise of any other expressed power of the federal government. Admitting now the "necessary and proper" implied power in congress to determine the geographical extent and distribution of post offices and post roads, and the un

avoidable, and therefore "necessary and proper" implied power to determine the gross physical characteristics of what may be transmitted, does it follow, all other conditions, including the physical characteristics, being the same, that congress has the power arbitrarily to make discriminations according to arbitrary standards, based upon the varying intellectual valuations of conflicting opinions, or opinions of suspected conflicting tendencies? Can the literature of Catholics, free-lovers, theists, and agnostics be excluded as unapproved by the law-making power, while the literature of evangelicals, polygamists and Christian scientists is transmitted because approved? May the literature of trades unionism be excluded and that of the employer's association transmitted? May the literature favoring the single tax, free trade, or state ownership of railroads be excluded, and those favoring an income tax, protective tariff and the repeal of anti-trust laws, be transmitted? Has congress the power to so regulate the mails as to transmit all literature "tending" to a centralization of power, progressive tyranny, moralization by force and that which "tends" to foster the ascetic ideal of sexual life, while it excludes all matter which "tends" toward decentralization and personal liberty, or "tends" to foster unconventional ideas of sex-life, all other conditions being the same? May the literature of prohibitionists be excluded, while that of their opponents is transmitted? Clearly, if congress has the implied power to do one of these things, it has the implied power to do them all, because they all bear the same relation, or more accurately, no relationship, to the establishment of post offices and post roads. We are not concerned with the question as to the likelihood of such a power being exercised to the fullest, nor are we concerned with the tremendous possibility for evil which might come from the abuse of so extraordinary a power, though that would make us hesitate to affirm its existence, unless the implication was an unavoidable one. Again we ask, has congress any such implied power? Clearly not, because its exercise bears no "necessary and proper" or conceivable relation to the establishment of post offices and post roads, nor to any other enumerated power of the federal government.

HOW IS THE IMPLIED POWER LIMITED?

Let us abandon the discussion from the standpoint of engrafting necessary exceptions upon an assumed unlimitedness

of the implied power, and discuss the matter by developing the implications from the constitution itself. Congress is not expressly authorized by the constitution to determine even the gross physical qualities of mail matter, but that power is unavoidably implied from the authority to establish post offices and post roads, because the latter cannot be executed without the exercise of a discretion as to the physical characteristics of postal matter. Can the same be said about a discretion as to the psychologic tendencies of ideas expressed upon the transmitted matter? Congress is not expressly authorized to discriminate according to the intellectual or "moral" qualities of that which may be expressed upon, or suggested by that which is transmitted through the mails. Congress can have the implied power to make such differentiations according to psychologic standards only if post offices and post roads are impossible of establishment and maintenance without the implication of such power. But if on the contrary, it is essential to the establishment or maintenance of post offices and post roads, that congress exercise a legislative discrimination between mail matter, not only according to the opinions actually transmitted, but also according to the psychologic tendency of that which is only suggested by, but not expressed in the matter actually transmitted, then such power will be implied. A mere analytical statement of the question shows how absurd is the claim of such a power.

Every publication undoubtedly suggests different things to many different people. In each, that which it suggests depends upon what, by prior varying experiences, has become associated in his mind with that which has been written. That which I send through the mail is one element, but not at all the determining element in the resultant varying ideas suggested to the different readers. How ridiculous and monstrous it is to assert that a discrimination between mail matter, not according to its own inherent definable qualities, but according to its mental associations in the reader's mind, is a "necessary and proper" incident to, or "a direct mode of executing the power" to establish post offices and post roads! Yet according to such tests of obscenity are present laws executed. What has the reader's sensitiveness to the discovery of lewd suggestions, or the existence of an associated lascivious idea, or the jury's capacity for psycho-sexual receptivity, to do with establishing post roads? Plainly and unmistakably nothing at all. Here

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