Hillary Clinton, the Post Office, and the Constitution:

Okay, I admit it, I used Hillary Clinton in my subject heading primarily to (a) pique your interest; and (b) get more search engine hits [Apparently, guest-blogging doesn’t give me access to Eugene’s metatags!]. I promise, though, that she’ll make an appearance … and soon.

But first, let me start with a thank-you to Eugene for inviting me to share my ideas in this space. It’s a real pleasure and honor to be here, not only among the regular “conspirators,” but also given the array of recent guest-bloggers including the likes of Cass Sunstein and James Q. Wilson. I’m afraid I won’t be able to reframe fundamental questions about the relationship between individuals and the state or empirically investigate the relationship between prison and crime, but I hope to say something in my own small academic corner. And, since I hope to build in the future on this work, I very much look forward to all of your comments and questions.

So now let’s return to Hillary Clinton. Back in October 2000 when she was first running for the Senate, the moderator at a televised debate asked for Clinton’s views on Bill 602P. Now, for those of you who’ve never heard of Bill 602P, you’re in good company: Clinton hadn’t either. What exactly was it? Yup, a tax increase: a proposal to impose a 5-cent tax on each e-mail message. Fortunately, as readers of this blog know well, Clinton is a tax-cutting crusader, and so she opposed the bill.

But who, you all might be asking, actually supported Bill 602P? Who could have been behind this plot to kill the goose of the Internet as it lays the golden eggs of diffusion of information? Clever readers with an economics bent will quickly intuit the answer. Who else but the evil monopolist whose business model was most threatened by the e-mail revolution: the U.S. Post Office.

Now, I hope it comes as no surprise that Bill 602P is an urban legend. But I use it because it tells us something about the perception of the Post Office in our so-called information age. The image of the Post Office in this story is one of a threatened monopolist and government bureaucracy with entrenched interests that seeks to retard the course of technological progress. In this vision one might even see the Post Office as Larry Lessig describes late twentieth century big media and telecommunications companies, as a dinosaur threatened by the Schumpeterian destabilizing impact of new communication technologies, only worse—a public dinosaur.

What I hope to do over the course of the week is to displace that image of the Post Office. I hope to convince you that the Post Office has -- like the Internet -- always been a medium of communications and that it served historically as a vehicle for a transformation in American society, just the sort that one imagines to be the result of a vast increase in the free flow of information.

More than that, however, I also hope to show you -- as Eugene pointed out in his welcome message -- that this relic of an earlier era shaped modern constitutional law. The basic idea is that choices about postal policy, made in the eighteenth century, eventually led to the shaping of three important constitutional doctrines: First Amendment "unconstitutional conditions," the First Amendment "right to receive" ideas, and the Fourth Amendment principle of communications privacy. On this, more details to follow. For now, though, I’m off to find a bunch of 42 ¢ stamps so I can send you all this “post.”

Postal Subsidies for News and the “Unconstitutional Conditions” Doctrine:

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.

The Postal Monopoly and the First Amendment “Right to Receive” Ideas:

Today, I hope to explain the connection between the Post Office as a monopoly on long-distance communication and the constitutional principle known as the “right to receive” ideas. Before doing so, though, I just want to mention one thing in response to some comments. After my first post, several commenters began a discussion about the basic legitimacy of the Post Office. The comments tended to revolve around whether the Post Office remains necessary and, in particular, whether the postal monopoly is — or, for that matter, ever was — necessary.

This is a legitimate and extremely important policy question. I can say unequivocally, though, that I am not taking a position on it. Nor do I take a normative position on the related question of whether, even if a monopoly were necessary as an economic matter (i.e. if the postal network were what economists refer to as a “natural monopoly”), the government ought to run it. My points throughout are purely descriptive. In any event, I mention this today because this question is tangentially related to today’s discussion, which is about the impact the monopoly has had on the First Amendment.

Okay then, to my main point. In contrast to yesterday’s example (and tomorrow’s), where the constitutional principle was borrowed directly from the legislative enactment, the Court never directly constitutionalized the government’s monopoly over long-distance communication. What the Court did do, however, was just as interesting. It shaped an important First Amendment principle — the “right to receive” ideas — around the fact that the Post Office was the principal means of long distance communication.

My basic claim, then, is that the Court’s perception of the Post Office as a monopoly — not as a legal matter, but rather as a practical matter — enabled the Court to read into the Constitution a “right to receive” ideas. Since you can probably see that this post goes beyond the bottom of your screen, I doubt you need a warning, but … well, let’s just put it this way, this won’t be fun if you’re reading on your handheld.

Early Postal History — Legal and Practical Monopoly

So, let me turn now to the historical origins of the monopoly. It is of course well known that the post office has always had a legal monopoly over the delivery of “letters.” That monopoly is currently found in what are known as the “private express” statutes (Chapter 6 of Title 39 of the United States Code, and 18 U.S.C. §§ 1693-1697), and the definition of “letter” is further refined in postal regulations. I discuss the origins of the postal monopoly in detail in the first article (pp. 696-699), but for now, all you need to know is that (a) the American Post Office has had a monopoly over what the law now calls a “letter” ever since the Articles of Confederation; and (b) not everything is a “letter.”

For my present purposes, though, the Post Office’s practical monopoly, its ubiquity through the early portion of American history, is more important. Again, lots of details in the article (pp. 700-04), but here’s a summary:

Through the early part of the nineteenth century, the Post Office grew profoundly. And its growth paralleled the population growth of the country, not simply its economic growth. How exactly did this happen? In part because of a seemingly unrelated debate taking place during deliberation of the same 1792 Post Office Act I mentioned yesterday, a debate about whether Congress or the Executive should have the power to designate postal routes.

Eventually, Congress decided to retain the authority to designate postal routes when it passed the 1792 Act, a decision that led to an expansion of the post office throughout the country, including particularly the transappalachian West. By leaving the authority in Congress’s hands, the 1792 Act helped change the assumption, prevalent in Great Britain and continental Europe at the time, that each individual postal route had to be self-supporting. That assumption effectively had to be abandoned as the power to designate post offices and post roads became the first opportunity for the dispensing of what we would today call congressional pork. In essence, the structure of the House ensured that the postal network would expand on the basis of population rather than commercial need since a post road and post office was something tangible that every federal Representative could bring his constituents.

The postal statutes throughout the early years actually listed the location of the roads and post offices in great detail. For example, an 1800 statute was so specific that it mandated that a new postal route in North Carolina pass by the house of either John Anders or William H. Beaty. Has anyone ever heard of these people? I certainly haven’t. I don’t mean to cast aspersions, but my guess is that their primary importance lay in having a friend in Congress.

The legal monopoly was thus augmented by a seemingly unrelated policy choice, one that embedded the post office into the social fabric of virtually every American community. Together, these early policy choices set the Post Office on a course towards which, as Justice Holmes put it in 1922, “habit and law combine[d] to exclude every other” means of long-distance communication. Leach v. Carlile, 258 U.S. 138, 141 (1922) (Holmes, J., dissenting).

Constitutional Law - The “Right to Receive” Ideas

The language of the First Amendment prevents the government from “abridging the freedom of speech, or of the press.” On its face, then, it doesn’t say anything about those who listen to “speech” or those who read the products of “the press.” The “right to receive” ideas is the First Amendment principle that grants rights to listeners and/or readers, rather than just speakers and/or writers.

Since by this point you have all no doubt picked up on my constant refrain, it should come as no surprise when I tell you that the first time the Court held that there is a “right to receive” ideas was in a case involving the Post Office, the 1965 case Lamont v. Postmaster General. Lamont involved a First Amendment challenge to a law that required a postal patron who was sent “communist political propaganda” in the mail to return a postcard indicating his or her desire to receive the materials prior to receipt – in essence, to tell the post office, “I want these materials that you the government deem to be communist political propaganda.”

The Court unanimously invalidated the statute. [As a side note, Lamont -- a full 174 years after ratification of the First Amendment — was the first case in which the Court invalidated a federal statute under the Free Speech and Press Clauses of the First Amendment.] The Court reasoned that the statute violated the First Amendment “because it require[d] an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressees[’] First Amendment rights” (my emphasis). The details of the Court’s reasoning are not crucial, but what is important is that the Court nowhere explained why the “addressee,” the recipient of the mail, even has a First Amendment right. That task fell to Justice Brennan, who wrote a concurrence explicitly stating that “the right to receive publications is … a fundamental right,” the protection of which is “necessary to make the express guarantees [of the First Amendment] fully meaningful.”

So, what exactly does this very abstract principle mean? The crux of my claim is that the right to receive publications is effectively limited to the Post Office — that is, the Court’s understanding of the abstract “right to receive” principle was dependent on the institutional context of the case and, in particular, on the Post Office’s effective monopoly over long-distance communication. One way to see this is to see what happened when someone argued for this so-called “right to receive publications” in a very different institutional context, the public school library.

In a 1982 case, Board of Education, Island Trees Union Free School District v. Pico, the Court addressed a constitutional challenge by students to a local school board’s decision to remove several books from a school library. Because of the unusual break-down of the votes of the Justices, the case’s actual holding was very narrow, consisting of little more than a remand to reverse a grant of summary judgment in favor of the school board. But the principal opinion — by Justice Brennan — relies on Lamont, in essence concluding that the school board violated the students’ “right to receive” by removing the books. But it’s clear — and Brennan acknowledges this — that the “right to receive” can’t apply to library acquisition decisions (even though Brennan would have held that it applied to removal decisions): it would obviously wreak havoc on libraries if patrons could claim a constitutional “right to receive” a particular book.

The dissents in Pico (the library-book-removal case) illustrate how Lamont (the communist-propaganda-in-the-mail case) is dependent on unique characteristics of the Post Office. In one of the Pico dissents, Justice Rehnquist specifically criticizes Justice Brennan’s attempt to import the “right to receive” into the context of the school, and in doing so, he refers to Lamont as a case involving a “complete denial of access to the ideas sought” (my emphasis).

Now, this is no doubt an overstatement. For example, the law at issue in Lamont had huge exceptions, including for U.S. government officials, public libraries, and universities. Another exception was for first-class mail. If the “communist political propaganda” was sealed in an envelope, it could be sent without the need for the addressee to send the Post Office a postcard.

So literally, Justice Rehnquist was wrong. The law in Lamont did not involve a “complete denial of access.” Still, the basic point, I think, remains. And, in this, Justice Rehnquist was certainly correct. A restriction on postal distribution is very much like a “complete denial of access.”

The reason of course is that the American Post Office was like a “monopoly” in some abstract sense — that is, it is only where a conduit is a “monopoly” that an inability to receive materials through that conduit approximates a “complete denial of access.” But, it was not the Post Office’s legal monopoly, but rather its effective monopoly — its ubiquity in American life — that rendered the law restricting communist political propaganda the equivalent of a “complete denial of access.” It was thus this institutional feature of the Post Office that permitted the Court to hold that the First Amendment includes a “right to receive.”

But, of course, as I described earlier, that ubiquity was not natural. It was created by policy choices, in particular by the early policy choice to give Congress the power to designate postal routes.

If you’ve stayed with me until now, congratulations. Tomorrow I’ll talk about communications privacy, a principle that impacts virtually everyone. And, as was the case yesterday, the connection between the legislative choice and the eventual constitutional doctrine is much more straightforward and easier to see.

The Post Office and the Origins of the Constitutional Principle of Communications Privacy:

Today, I’ll describe my last example of the phenomenon of a constitutional principle deriving from an embedded characteristic of the Post Office: the Fourth Amendment right of communications privacy. As readers of this blog no doubt know, communications privacy issues have been big news for a long time. Orin Kerr, for example, has written extensively on the question of e-mail privacy, and of course, James Risen and Eric Lichtblau won a Pulitzer Prize — and perhaps Woodward and Bernstein treatment for the rest of their careers — for uncovering the NSA’s telecommunications surveillance program. Whole organizations are now devoted to the issue of online privacy, and whole law classes now focus on it. And, of course, just yesterday, the Ninth Circuit addressed the question of Fourth Amendment protection for text messages.

Modern Fourth Amendment privacy law is usually seen as deriving from Justice Brandeis’s seminal dissent in the 1928 case Olmstead v. United States, 277 U.S. 438, 471 (1928) (Brandeis, J., dissenting), a case in which the Supreme Court held that wiretapping a criminal defendant’s telephone didn’t violate the Fourth Amendment. I argue, though, that we need to go further back than Olmstead, back to the eighteenth century. But — and this should come as no surprise if you’ve read my previous posts — rather than back to the drafting and ratification of the Constitution, we need to go back to early postal policy.

Thus, the crux of my claim is that the constitutional principle of communications privacy didn’t actually come from the Fourth Amendment or the Constitution at all; it came from eighteenth-century postal policy. Again, as with my two previous posts, I will discuss a little eighteenth-century history and then some constitutional law.

Early Postal History — Postal Privacy

So let me start with postal privacy, the idea that the government cannot open sealed mail without a warrant (even though it is of course the government that owns and operates the postal network). Where did postal privacy first come from? Though there is no simple answer and the ultimate embedding of postal privacy into the institution of the Post Office took time, postal privacy became a central feature of the legal regime that defined the American Post Office from its very beginning.

In fact, one of the most important moments in the development of postal privacy occurred with the establishment of the American Post Office as separate and distinct from the colonial post office during the Revolutionary War. I include lots of details in the second of the two articles, but the key point is this: the reason the Continental Congress first adopted its own postal network in 1775 was in large part that the rebels wanted a communications network that was free from British surveillance. Remember, these people were very likely viewed as traitors — even before the outbreak of the war — and they needed to communicate across long distances to plan their opposition to the British.

At the end of the war, this fear of government surveillance was then written into the law regulating the Post Office. The Continental Congress passed its first comprehensive postal Ordinance in 1782, and it included a prohibition on the opening of mail without a warrant. Eventually, the prohibition was written into the same 1792 Post Office Act I’ve mentioned during my past two blog posts. Over time, the statutory prohibition on opening mail became embedded into the fabric of the postal network.

Most important for my purposes, this entire development was independent of the drafting and ratification of the Fourth Amendment. [… although, in an interesting coincidence, Jefferson — as Secretary of State — officially notified the state governors of both the ratification of the Bill of Rights and the 1792 Post Office Act in the very same letter. See Bernard Schwartz, The Bill of Rights: A Documentary History (1971), vol. 2, at 1203.]

Constitutional Law — Communications Privacy and the Fourth Amendment

As I noted above, Justice Brandeis’s dissent in Olmstead — which would have held that warrantless wiretapping of a telephone violated the Fourth Amendment — is largely viewed as the intellectual underpinning for Berger v. New York, 389 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967), the two cases that form the backbone of the modern constitutional principle of communications privacy. [I want to emphasize here that I’m referring here only to the general principles embodied in Brandeis’s Olmstead dissent, since Orin Kerr has specifically argued that Olmstead has not been overruled.] [CORRECTION: In the comments, Orin corrects me here. I should have said that he has argued that the Court has never adopted Brandeis's Olmstead dissent. My mistake.] But Justice Brandeis’s dissent had its precursors too. Crucial among the precedents on which Brandeis relied was the 1878 case Ex parte Jackson, 96 U.S. 727 (1878), the first case in which the Court ruled that the Fourth Amendment preserved a realm of communications privacy.

In Ex parte Jackson, the Court ruled, in dicta, that the Fourth Amendment prohibits the government from opening a sealed letter without a warrant. The details of Ex parte Jackson aren’t crucial. What is important, though, is that the Court simply announced this principle, and did so without citation to any cases or constitutional history. The remarkable thing about this is that the rest of the Court’s opinion — the case’s holding is that the Constitution permits Congress to prohibit the mailing of lottery advertisements — is littered with references to constitutional history.

Still, if the Court was inclined to rule on the Fourth Amendment question, we shouldn’t really be surprised that there is no reference to the drafting and ratification of the Fourth Amendment. As best I have been able to determine, there is no evidence to suggest that the Fourth Amendment was originally meant to encompass postal privacy. Modern scholars of the history of the Fourth Amendment debate a lot of different things, but no historian of the original meaning of the Fourth Amendment that I’ve found makes any mention of postal privacy, and the only scholar I’ve found who directly addresses the notion that Ex parte Jackson might be based on the original understanding, Telford Taylor, concludes that it isn’t.

So, in short, the statutory prohibition on opening letters became an institutional feature of the Post Office, which in turn led to Ex parte Jackson. The constitutional principle of communications privacy thus originally came not from the Constitution, but rather from postal policy.

Tomorrow, I’ll sketch out some concluding thoughts about the examples I’ve described the past three days.

Legislatures, Institutions, and Constitutional Theory:

For my final post, I thought I’d begin a discussion of what I view as some of the broader implications of the examples I’ve been discussing. On first blush, I admit, my work seems incredibly obscure and esoteric. Even if it isn’t obscure -- actually, even if it is -- one might still legitimately ask what can be gained by such a detailed look into these examples. Who, after all, would want to look at something like “The Constitution” through the lens of something like the Post Office? I’ll have more to say about how I came to look at the Post Office at the end of this post -- for now, suffice it to say that I did not set out trying to understand the impact of the Post Office on constitutional doctrine -- but still it just seems downright weird. Beyond a simple understanding of the examples in and of themselves, is there anything else?

Well, I say “begin a discussion” because this is where I’m at the beginning of thinking things through seriously and would welcome comments. As I described on Tuesday, I think of the work as providing examples of a four-step process of constitutional lawmaking: (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.

In the comments on Tuesday, Orin suggested that this might be a broader phenomenon. All I can say is I certainly hope he’s right. Surely it is the rare academic who would content him/herself with the rather underwhelming claim, “I have developed the definitive theory of the relationship between the Post Office and the Constitution, so there!”

To me, one interesting thing about these examples is that this process doesn’t really comport with our ordinary conception about the sources of constitutional law. If we think, for example of Philip Bobbitt’s famous typology of constitutional arguments or of the constant concern about the counter-majoritarian difficulty, the idea that judicial constitutional lawmaking might derive in some ways from legislative determinations seems odd.

Of course, plenty of people have questioned the counter-majoritarian difficulty as a descriptive matter by simply denying that the Supreme Court acts in a counter-majoritarian manner. The most well-known articulations of this idea are by Robert Dahl and Finley Peter Dunne’s Mr. Dooley (“the supreme coort follows th’ iliction returns”). But, while the constitutional principles in my examples are of course “majoritarian” in the sense that they were legislatively enacted, the time lag between the legislation and the Court’s rulings obviously makes “th’ iliction returns” irrelevant. So there’s clearly something else going on.

I end the second article with an exploration of work in constitutional theory that can situate my examples, work by Robert C. Post and William Eskridge & John Ferejohn, among others. And, in my first article, I also look at work by Frederick Schauer. None of this work fits perfectly, however, and this is in part why I find this form of constitutional lawmaking so intriguing.

Post, for example, has written about the dialectical relationship between judicial constitutional law making and what he refers to as “constitutional culture,” which he defines as that “specific subset of culture that encompasses extrajudicial beliefs about the substance of the Constitution”; Eskridge & Ferejohn have written about what they refer to as “super-statutes,” statutes that fall into an “intermediate category of fundamental or quasi-constitutional law.” They argue that such statutes can be “imperial,” meaning that they can “affect other statutory schemes and even constitutional doctrine.” Schauer argues -- as a normative matter -- in favor of an institution-focused approach to the First Amendment. As I explain in the articles, all of this has something to say about my stories.

But, beyond these theorists, my articles also have a connection with -- what did Orin call him yesterday, the “blogfather”? -- Eugene. Allow me to explain. [And, I promise, he had no idea about this connection when he asked me to guest-blog.] Several people have asked how I came upon the Post Office as a subject of study. “Very circuitously” is the short answer. The slightly longer answer is this:

About six years ago, the Colorado Supreme Court held that the Colorado Constitution’s “Freedom of Speech and Press” Clause required that search warrants seeking certain book store records meet a higher standard than ordinary warrants and subpoenas. [A federal district judge in D.C. had done something similar in 1998 when Independent Prosecutor Starr sought records of Monica Lewinsky’s book purchases from Kramerbooks, a prominent independent bookstore in Washington, DC.]

A few years later, Eugene wrote an article entitled “Deterring Speech: When Is It ‘McCarthyism’? When Is It Proper?”, which among other things criticized the court’s reasoning. In the article, Eugene argued that seeking bookstore or library records was directly analogous to seeking all sorts of records that implicate people’s speech. Subpoenas of bookstores and/or libraries are, he wrote, “simply special cases of a more general and well-established phenomenon, subpoenas of information related to First Amendment activities.” And so why should they be treated differently from the many other kinds of subpoenas seeking information about First Amendment activity, subpoenas that never result in a heightened standard? As always, Eugene’s logic was impeccable, but something about the argument nagged at me. Why -- as a descriptive matter -- do courts make the distinction that Eugene had so convincingly explained was no distinction at all?

The answer that struck me was what sent me to look at the Post Office; what the courts had done in making it harder to subpoena a bookstore (and/or a library) was to protect, not individual free speech rights per se, but instead an institution that -- in a broad sense -- furthered First Amendment values. So, to understand privacy of bookstore/library records, my research took me to privacy of postal correspondence. And that, in turn, led me to the articles that form the basis of the series of posts I’ve written the past week. Eventually, though, my hope is to build on this work on the Post Office to try to understand other institutional contexts -- such as libraries -- that shape constitutional jurisprudence.

Of course, the connection I’m positing may be all wrong. After all, as a doctrinal matter, privacy of postal correspondence is viewed through the lens of the Fourth Amendment, not the First, and one can certainly make plenty of arguments that bookstores and libraries bear no resemblance to the Post Office. But I figure the best way to find out is to try the idea out here, where -- if I am wrong -- the blogfather will be right there to let me know.

Thanks again to Eugene for sharing this space with me and to you all for reading.