Tench Coxe may be the most influential founding father that people have never heard of.
For most people, discussions about the meaning of the Constitution begin and end with the Federalist Papers. These essays enjoy immense popularity today mostly due to the fame of their authors – Alexander Hamilton, James Madison, and John Jay. But in their day, they didn’t have widespread influence on the ratification itself.
On the other hand, Coxe’s numerous essays did.
It’s important to remember that the Federalist essays were written specifically for a New York audience. Each one is even addressed directly “To the People of the State of New York.” More significantly, they weren’t circulated to any great extent outside of that state during the ratification period.
Coxe addressed many of his essays “To the People of the United States,” indicating they were intended for a broader audience. And while the Federalist essays got virtually no play outside New York, much of Coxe’s work was widely distributed and published in other newspapers in virtually every state where ratification was contested.
His writing serves as a valuable resource today as we seek to learn the original, legal meaning of the Constitution as understood by the founders and ratifiers, and the limits it places on the federal government.
Coxe covered a wide range of topics during the ratification debates, setting the stage for virtually every federalist argument in favor of ratification.
Given that the arguments advanced by supporters of ratification reveal how the people who ratified it understood its original legal meaning, Coxe’s writing provides undeniable insight into just how far things have gone off the rails.
Here are the top five arguments from Tench Coxe.
1. A Line in the Sand: Delegated and Reserved Powers
Perhaps better than any other supporter of the Constitution, Coxe explained federalism – the division of powers between the state and federal governments – writing, “The general government is fœderal, or a union of sovereignties, for special purposes. The state governments are social, or an association of individuals, for all the purposes of society and government.”
Coxe laid out a careful delineation between the specific enumerated powers delegated to the federal government and the mass of powers remaining with the states. He hammered this theme in several of his essays, including several lists of powers that would specifically remain with the state governments and those off limits to the general government.
After completing a long list of things prohibited to the federal government, he summed it up by writing, “nor can (the federal government] do any other matter or thing appertaining to the internal affairs of any state, whether legislative, executive or judicial, civil or ecclesiastical.”
In effect, Coxe called attention to the constitutional line in the sand dividing state and federal authority, or as he put it, the “permanent marks and lines of separate sovereignty, which must ever distinguish and circumscribe each of the several states.”
2. Power flows from the people
Coxe reaffirmed the long-held view from the American Revolution that the people are the source of all power.
“The people will remain, under the proposed constitution, the fountain of power and public honor.”
He went on to insist that the “President, the Senate, and House of Representatives, will be the channels through which the stream will flow—but it will flow from the people, and from them only.” [Emphasis original]
Like many other Federalist writers that followed, Coxe implied that it was up to the people – as the source of all power – to ensure that the power they delegated to government was kept within its proper limits.
In another essay, Coxe argued that the government “given to the free citizens of America” under the proposed Constitution would be “truly a government of the people, for no man can be excluded from giving his voice, or from holding the offices which are necessary to execute it.”
Power, Coxe insisted, “is vested where I trust it will ever remain, IN THE PEOPLE THEMSELVES.”
3. The People Would Retain the Power of the Sword.
“Their swords, and every other terrible implement of the soldier, are the birth-right of an American.”
Coxe’s assertion logically flows from the fact that the people are the source of all power. That being the case, the people require all the tools necessary to assert their power and authority as needed.
For Coxe, this was rooted in the natural right of self-defense.
He insisted that the power of the sword was truly in the hands of “the yeomanry of America from sixteen to 60.”
By this, he meant the militia, and he believed this was the essential first line of defense for the United States.
And who makes up the militia?
As Coxe said, it is the people themselves.
Furthermore, Coxe pointed out, “Congress have no power to disarm the militia.”
Additionally, opponents of the Constitution often argued that it would facilitate a standing army that could oppress the people. Coxe countered that the militia, primarily controlled by the states, would “render many troops quite unnecessary.”
He wrote, “The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible.”
4. The President Is Not King
Having just fought a long, bloody war to rid themselves of a king, many Americans were extremely wary of a strong executive. Patrick Henry even warned that under the Constitution, “your president may easily become king.”
Coxe argued that the president would exercise only limited powers and was nothing like the British king. He carefully delineated the difference between the executive in the constitutional system and the British king.
For example, he noted that the British king was also the head of the established church, “with an immense patronage annexed,” something impossible under the Constitution.
And while a king inherited his position for life, “In America our President will always be one of the people at the end of four years.” Furthermore, the president was originally “one of the people” and, in a reaffirmation of the principle that the people are the source of all power, “He is created by their breath.”
Coxe also pointed out royal powers that presidents would not be allowed to exercise. For instance, the king was able to create members of the House of Lords.
“Our President not only cannot make members of the upper house, but their creation, like his own, is by the people through their representatives.”
Perhaps most significantly, while the king possessed legislative power, the president wasn’t delegated any authority to make laws. Under the Constitution, the president is only authorized to insert himself into the legislative process with a signature or a veto.
5. A Union of Sovereign States
Consolidation simply means the centralization of power in one all-encompassing national government.
Coxe forcefully argued that the Constitution was not intended for that purpose.
“The matter will be better understood by proceeding to those points which shew, that, as under the old so under the new federal constitution, the thirteen United States were not intended to be, and really are not consolidated, in such manner as to absorb or destroy the sovereignties of the several states.”
He went on to assert that not only do the state governments maintain their sovereignty and independence in the constitutional system, but they are indispensable in its operation.
“It will be found, on a careful examination, that many things, which are indispensibly necessary to the existence and good order of society, cannot be performed by the fœderal government, but will require the agency and powers of the state legislatures or sovereignties, with their various appurtenances and appendages.”
Coxe summed up the differences between the federal and state governments, arguing that they are entirely different entities with different purposes and powers.
“The federal government and the state governments are neither co-ordinate, co-equal, nor even similar. They are of different natures.”
He went on to contrast the two types of governments.
“The general government is fœderal, or a union of sovereignties, for special purposes. The state governments are social, or an association of individuals, for all the purposes of society and government.”
Coxe conceded that the “greater” could swallow up the “lesser,” but he argued that if that was true, “let the federal government take care, for it is surely less powerful than the state governments combined.”
“Without the state governments, that of the union can have no power, since the latter is created by them—but the state governments have and ever must have much separate and independent power, and do not derive, from the fœderal government, any part of what they possess.”
One of the most important ways this was to play out was the selection of senators in congress by state legislatures – prior to the 17th Amendment.
“They will also feel a considerable check from the constitutional powers of the state legislatures, whose rights they will not be disposed to infringe, since they are the bodies to which they owe their existence, and are moreover to remain the immediate guardians of the people.”
In a nutshell, Coxe argued that this division of authority, when used as a check against consolidation, would “prevent [the several states from] annihilation by the federal government, or any of its operations.”
Putting these all together, it’s no wonder the government-run schools never teach us much about Tench Coxe – one of the most important and influential founders during the time of ratification.
