an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The United States Postal Service needs help from Congress and, so far, it doesn’t look like it is going to get it. Instead, anti-Postal Service advocates in Congress and at the Cato Institute have seized on a congressionally-created fiscal “crisis” to argue that the Post Office should be fundamentally restructured, or even replaced by a private entity which could compete in the private market. The Post Office is currently a captive of the anti-federal government ideology that has swept this nation, the same ideology that almost led to the default of our government a year ago today. Though the postal service is not really a branch of the government (for example, it is not funded by federal taxes), it is a large federal program which has contact with all of us, every day. The debate over the Post Office reflects divisions over the role that the federal government should (or should not) play in our daily lives, but there is more. What’s really at issue in this controversy is the role that the Post Office plays in our constitutional democracy.
Stop and consider for a moment the fact that the Framers of our constitution included the power “to establish Post Offices and Post Roads” on the paltry list of the enumerated powers of Congress in Article I, along with the power to regulate commerce, establish a uniform rule of naturalization, organize and provide for the armed forces, coin money, and a few other things. Why did the Framers consider a national post office to be so important that they included it on this short list? Because there is a unifying theme behind all of these enumerated powers – they wanted to give Congress the authority to enact measures that would help to create and sustain a healthy, functioning democratic nation.
Just as the power to regulate the national economy and coin money enable Congress to enact measures to strengthen the national economy, the power to create a post office and post roads empowers them to create a network of communication to strengthen national unity and democracy. Post offices and post roads provide an affordable means of communicating with people who live throughout the country (and beyond). Communication, especially about political issues, is a concept which is recognized as essential to democracy in our First Amendment jurisprudence. The Post Office is also required to deliver mail to every person living in this country, regardless of how remote their address, how undesirable their neighborhood, or how few their financial resources. This is a fundamentally democratic mission.
True, in today’s digital world, much of our communication occurs not through old fashioned “snail mail,” but through electronic measures such as e-mail, Facebook, and Twitter. Maybe Congress’ power to create the postal service is an Eighteenth century anachronism. However, a significant portion of our population still does not have access to electronic communication and still depends on the postal service to receive and pay bills and communicate with family members.
More fundamentally, though, what is really at stake here is our vision of what it means to be American, and the role of the federal government in that vision. Our Constitution gives the Federal Government a significant role in establishing a national community. The United State Postal Service fosters this community, and reflects this vision of national unity. Indeed, that may be exactly why the postal service is under attack. But I say, neither rain, not sleet, nor snow, nor Tea Party activist, should be allowed to stop the postal service from serving its function in our constitutional democracy.
Rebecca E. Zietlow is Charles W. Fornoff Professor of Law and Values at the University of Toledo School of Law. You can reach her by e-mail at Rebecca Zietlow at utoledo.edu Posted
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