The framers of the federal bill of rights by the First and Tenth Amendments sought to deny Congress power over utterances unless they were connected with criminal conduct other than advocacy. Any power over such utterances was to reside in the states. However, the Supreme Court departed from the framers' intent.

One of the factors in this development was the emergence of an undefined federal police power. This occurred largely under the commerce and postal clauses. It began over a century ago. As early as 1838 Congress passed a law requiring the installation of safety devices upon steam vessels. Beginning in 1842 Congress enacted a long series of statutes proscribing obscene material. The first such act prohibited the importation of "indecent and obscene prints, paintings, lithographs, engravings, and transparencies." In 1848 Congress prohibited the importation of spurious and adulterated drugs and provided a system of inspection to make the prohibition effective. In 1865 Congress made it a misdemeanor to mail an "obscene book, pamphlet, picture, print, or other publication of a vulgar and indecent character." The next year Congress controlled the transportation on land and water of explosives. In 1868 Congress made it unlawful to use the mails for lottery literature and paraphernalia.