Tench Coxe on State vs Federal Power under the Constitution

By: Mike Maharrey

The federal government has no constitutional authority to do the vast majority of the things it does today.

Of course, this truth runs counter to conventional wisdom and everything you learned in your high school government class. Suggest the feds shouldn’t formulate policies on healthcare, education or infrastructure, and you’ll get blank stares at best. Most will adamantly disagree. And many will simply write you off as some kind of “anti-government” kook.

But most ratifiers of the constitution would find the breadth and scope of federal power today shocking and absurd.

Of course, many who were in the anti-federalist camp would say, “Yeah, I told you so.” Opponents of the Constitution predicted the federal government would eventually swallow up the states – or as anti-federalists put it, that the Constitution would result in “the consolidation of the United States into one government.”

In essence, that’s what we have today – a singular national government centered in Washington D.C. with states functioning as mere political subdivisions doing the bidding of their federal overlords.

This may be the result, but supporters of the Constitution swore this wasn’t the intent.

Tench Coxe was a prominent advocate for ratification and a delegate for Pennsylvania to the Continental Congress in 1788-1789. He later served as Secretary of the Treasury. He wrote three essays published in the Pennsylvania Gazette in early 1788 under the pen-name “A Freeman.” In these essays, Coxe offered some of the most forceful arguments asserting the limited nature of the federal government under the proposed Constitution.

The purpose of these essays was to counter this idea that the Constitution would swallow up state sovereignty. As he put it, he would set out 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 fœderal government, or any of its operations.”

Coxe insisted that while the Constitution would strengthen the existing confederation  – or union – it would not diminish the fundamental sovereignty of the states that had existed from the moment they declared their independence from Great Britain.

“The matter will be better understood by proceeding to those points which shew, that, as under the old so under the new fœderal 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.”

Coxe first addressed the expression —“We the People” in the preamble. Calling the phrase a “mere form of words,” he explained that while “the people” were in fact sovereign in the system, they acted not as one uniform mass, but through their existing political societies – the states.

“First, then, tho’ the convention propose that it should be the act of the people, yet it is in their capacities as citizens of the several members of our confederacy—for they are expresly declared to be ‘the people of the United States’—to which idea the expression is strictly confined, and the general term of America, which is constantly used in speaking of us as a nation, is carefully omitted: a pointed view was evidently had to our existing union. But we must see at once, that the reason of ‘the People’ being mentioned was, that alterations of several constitutions were to be effected, which the convention well knew could be done by no authority but that of ‘the people,’ either determining themselves in their several states, or delegating adequate powers to their state conventions. Had the fœderal convention meant to exclude the idea of ‘union,’ that is, of several and seperate sovereignties joining in a confederacy, they would have said, we the people of America; for union necessarily involves the idea of component states, which complete consolidations exclude.”

Coxe then moved on to the main thrust of his argument, explaining that the system of government proposed by the Constitution could not operate without the states because the federal government, being strictly limited to its enumerated powers, lacked the authority to do so many things necessary to maintain a political society. Since the federal government could not act, the states would have to.

“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 drove his point home by listing ten broad areas where the federal government has no authority to act. Several of these are self-evident, but the long list included in the tenth point drives home the extremely limited nature of the federal government supporters of the Constitution promised.

“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 approaches the issue from the other side, enumerating “what the state governments must or may do.” Again, many of the items Coxe lists as the exclusive purview of the states reveals just how far the federal government has usurped state authority.

“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]

As James Madison asserted, to properly interpret the Constitution, we must seek the understanding of those who ratified it.

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.”

Coxe’s essays make it clear that the federal government was only intended to exercise limited, delegated powers, and the most authority remained with the states and the people. The states later ratified the Tenth Amendment to make this implicit construction explicit.

So no, the federal government does not have the authority to do the vast majority of things  it does today. It has usurped state sovereignty and made a mockery of those who supported ratification of the Constitution.