Despite being little known today, Tench Coxe was an influential founding father, and in early 1788, he provided what was possibly the most comprehensive list of examples to explain the division of state and federal powers under the proposed Constitution.
In his three essays of A Freeman published by the Pennsylvania Gazette, Coxe argued that federal powers would be limited to those delegated to it in the Constitution.
He outlined this argument early in the first essay.
“I shall endeavour to exhibit clear and permanent marks and lines of separate sovereignty, which must ever distinguish and circumscribe each of the several states, and prevent their annihilation by the federal government, or any of its operations.”
Anti-federalist opponents of the Constitution argued that the proposed general government would be so powerful it would swallow up the states, leading to “consolidation” – the centralization of power in a single government. Coxe argued that separation of powers and the ultimate sovereignty of the states would prevent this.
“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.”
He fleshed out this argument by contrasting all of the things sovereign states can do with the small number of enumerated powers delegated to the federal government.
This included nine broad areas in which the federal government is not authorized to act.
- Train the militia or appoint its officers
- Fix the qualifications for electors of the president and vice president
- Control the elections to fill vacancies in the House and Senate
- Interfere in state courts or determine the criminal offenses of the state
- Elect a president, vice president, senator or representative
- Determine the place of choosing senators
- Enact laws for the inspection of the produce of the country.
- Appoint or commission any state officer, legislative, executive, or judicial
- Interfere with, alter, or amend the constitution of any state
In addition to these nine, Coxe included a 10th, an entire category covering a vast number of policy areas that are reserved for the states – and off limits to the federal government.
“They cannot interfere with the opening of rivers and canals; the making or regulation of roads, except post roads; building bridges; erecting ferries; establishment of state seminaries of learning; libraries; literary, religious, trading or manufacturing societies; erecting or regulating the police of cities, towns or boroughs; creating new state offices; building light houses, public wharves, county gaols, markets, or other public buildings; making sale of state lands, and other state property; receiving or appropriating the incomes of state buildings and property; executing the state laws; altering the criminal law; nor can they do any other matter or thing appertaining to the internal affairs of any state, whether legislative, executive or judicial, civil or ecclesiastical.” [Emphasis Added]
In his second essay, Coxe approached the issue from the other side of the coin, listing 13 categories of “what the state governments must or may do.”
- Train the militia and appoint its officers
- Regulate religion
- Determine the qualifications of electors
- Regulate the law of descent (wills and inheritance)
- The elections of the President, Vice President, Senators and Representatives, are exclusively in the hands of the states, even as to filling vacancies.
- Elect, commission, and appoint all state officers
- Alter or amend their own constitution
- Charter corporations
- Give its dissent to federal bills (voting them down) through their state-appointed senators (prior to the 17th Amendment)
- Check the appointment of federal officers through their state-appointed senators. (Also prior to the 17th Amendment.)
- Manage their separate territorial rights.
- Exercise police powers (regulate and administer criminal law)
- Determine all the innumerable disputes about property lying within their respective territories between their own citizens, such as titles and boundaries of lands, debts by assumption, note, bond, or account, and mercantile contracts.
As he did in the first essay, he summarized the vast reservoir of state power with a long list of other spheres completely controlled by the states.
“The several states can create corporations civil and religious; prohibit or impose duties on the importation of slaves into their own ports; establish seminaries of learning; erect boroughs, cities and counties; promote and establish manufactures; open roads; clear rivers; cut canals; regulate descents and marriages; licence taverns; alter the criminal law; constitute new courts and offices; establish ferries; erect public buildings; sell, lease and appropriate the proceeds and rents of their lands, and of every other species of state property; establish poor houses, hospitals, and houses of employment; regulate the police; and many other things of the utmost importance to the happiness of their respective citizens. In short, besides the particulars enumerated, every thing of a domestic nature must or can be done by them.” [Emphasis Added]
In the third essay, Coxe continued to hammer away at the vast amount of power retained by the states. He pointed out that states will remain so independent that “their laws may, and in some instances will, be severer than those of the union.”
He also highlighted some of the authority retained by states that demonstrate their continued sovereignty.
For instance, “lordship of the soil … remains in full perfection with every state.” Coxe called this “one of the most valuable and powerful appendages of sovereignty.”
He also noted that states would also retain the power to levy taxes, pointing out that, “independent revenues and resources are indubitable proofs of sovereignty.”
Having offered multiple proofs of state sovereignty and a clear line between state and federal power over the course of three essays, Coxe concludes that “the subject is inexhaustible.”
“Every section in the federal constitution, as we peruse it, affords new ideas opposed to consolidation: Every moment’s reflexion, on the operation and tendency of the proposed government, adds to their number.”
As already mentioned, the essay not only delineated the line in the sand between the state and federal governments, it addressed one of the most forceful Anti-federalist arguments – consolidation
In a letter to James Madison, Coxe noted that “consolidation is the great Object of Apprehension in New York.”
“I have therefore thought a few well-tempered papers on this point might be useful & have commenced them under the signature of the freeman in this days Gazettee, of wch. I send you a copy.”
In these Freeman essays, Coxe forcefully argued that the Constitution wouldn’t lead to a strong centralized government because power was carefully divided, and federal authority was expressly limited.
In Federalist #45, James Madison outlined the divide between state and federal authority pointing out that the “powers delegated by the proposed Constitution to the federal government are few and defined.” But the powers that remain with the state governments “are numerous and indefinite.”
Madison may well have been influenced by Coxe’s essays. He published this overview of the division between state and federal power just three days after receiving copies of the Freeman essays with their in-depth comparison of state and federal powers.
The essays remain a valuable resource today. They offer one of the best and most comprehensive founding era breakdowns of the separation of state and federal powers.
