Tim Fulton has posted The New Post Roads: The Postal Clause as an Affirmative Power to Provide Universal Internet Access on SSRN. Here is the abstract:
This Article argues that the Post Roads Clause—Congress’s power “To establish Post Offices and post Roads”—is best understood as an affirmative grant of power to provide the nation’s communicative infrastructure, and that the internet is the present-day object of that power. So understood, the clause supplies a constitutional warrant for a federal commitment to universal internet access. In making this argument, the Article departs from the dominant scholarly use of postal history. Anuj Desai has shown how early postal policy generated modern First and Fourth Amendment doctrine, treating the post office as a source of individual rights and constraints on government; this Article instead reads the same clause as a source of affirmative federal power to build and guarantee the channel itself. It also builds on Robert Natelson’s originalist account of the clause—under which “establishing” a post road historically included constructing it—to defeat, on originalist grounds, the long-standing objection that the postal power permits only the designation of existing routes. The Article then synthesizes three doctrinal sources—the enumerated postal power read through its purpose, the implied-powers reasoning of McCulloch v. Maryland, and the Commerce Clause—into a single affirmative-provisioning theory, and distinguishes that theory from the common-carriage and Title II frames that dominate broadband law. After developing the normative case, the Article engages the strongest objections, including the early Republic’s internal-improvements debate, federalism, market efficiency, and the absence of a limiting principle, and argues that these constrain the form a federal commitment should take far more than they defeat its constitutional legitimacy.
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