Anuj C. Desai, Wisconsin, has posted an article forthcoming in the Hastings Law Journal, The Transformation of Statutes into Constitutional Law: How Early Post Office Policy Shaped Modern First Amendment Doctrine. Here's the abstract:
We typically think of constitutional law as the product of text, structure, constitutional history, ethical and moral philosophy, or common law doctrine. At times, though, constitutional law comes directly from societal institutions; those institutions in turn are often rooted in legislative, not judicial, choices. In this article, I tell an intriguing story of constitutional lawmaking in which policy choices about an institution developed into constitutional law. I look at two important areas of First Amendment doctrine: First Amendment constraints on government spending, i.e., "unconstitutional conditions"; and what is known in First Amendment jurisprudence as "the right to receive." I argue that the genesis of both doctrines can be found in legislative choices made during the formation of one of the nation's first "administrative agencies," a communications network that was viewed as the internet of its day: the United States Post Office. When the twentieth century Supreme Court held that the First Amendment can constrain government spending and then later, in a separate line of cases, established "the right to receive," the Court initially relied on specific attributes of the post office. Those attributes in turn had been established by choices made by policymakers during the late eighteenth century. In short, the Court incorporated aspects of the early postal statutes into First Amendment doctrine. Legislative choices in effect became constitutional law.