Tench Coxe on the Senate: A Counter to Anti-Federalist Aristocracy Fears

By: Mike Maharrey

 

The structure of the Senate was a serious point of contention for many Anti-Federalists, who warned it would quickly become a permanent or baneful aristocracy, with most senators serving for life. Tench Coxe was a leading voice on the Federalist side rejecting these fears. He repeatedly emphasized that the election of senators by State legislatures, along with other features built into the legislative system, would check any aristocratic tendencies.

In his first American Citizen essay, Coxe contrasted the role of a president under the Constitution to a British king, showing that the American executive would have far less power. In his second essay, Coxe contrasted the Senate with the House of Lords in the British Parliament. He summarized his conclusion in the second sentence.

“As our President bears no resemblance to a king, so we shall see the Senate have no similitude to nobles.” [Emphasis in original]

He started by noting that members of the House of Lords obtained their seats through heredity. Under the original Constitution, the state legislatures selected senators. It wasn’t until the passage of the 17th Amendment in 1913 that the people picked senators through a popular election.

“As the Senators are still to be elected by the legislatures of the states, there can be no doubt of equal safety and propriety in their future appointment” [Emphasis original]

Coxe argued this structure would create a Senate with better-qualified members.

“They will have none of the peculiar follies and vices of those men who possess power merely because their fathers held it before them, for they will be educated (under equal advantages and with equal prospects) among and on a footing with the other sons of a free people.”

Coxe asserted that the makeup of the Continental Congress and Confederation Congress bore this out.

“Many young men of genius and many characters of more matured abilities, without fortunes, have been honored with that trust. Wealth has had but few representatives there, and those have been generally possessed of respectable personal qualifications.”

The age requirement of at least 30 for Senators would also keep “undeserving or inexperienced youth” from acquiring a seat based on their wealth or connections.

Coxe highlighted several other characteristics of the Senate that would limit the ability to use their position to accumulate wealth and power as was common with members of the House of Lords.

He pointed out that Senators “can hold no other office civil or military under the United States.” Senators also lack the ability “to join in making provisions for themselves, either by creating new places or increasing the emoluments of old ones.”

Coxe also noted the separation of powers inherent in the constitutional system would limit the power of senators. The House of Lords enjoyed judicial as well as legislative functions. In fact, the upper chamber of Parliament was the highest court in civil affairs. In contrast, the U.S. Senate “possesses a much smaller share of the judicial power than the upper House in Britain.”

“Impeachments alone are the cases cognizable before them, and in what other place could matters of that nature be so properly and safely determine?”

Coxe pointed out that the division of legislative powers between the House and Senate would further mute the power of Senators. While senators, due to their appointment by state legislatures, would be “more independent of the people as to the free exercise of their judgment and abilities than the House of Representatives,” they would lack the power of the purse, or as Coxe put it, “the sinews of the state.”

The representatives of the people would retain that power.

“They may restrain the profusion or errors of the House of Representatives, but they cannot take the necessary measures to raise a national revenue.”

Coxe viewed the selection of senators by state legislatures as an important division of power because they would “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.”

Furthermore, he argued state legislature appointments of senators would ensure they would be “detached, as much as possible, from local prejudices in favor of their respective state by having a separate and independent vote,” bound by “his person, honor and character.” [Emphasis in original]

And with only two members from each state, an individual senator “cannot be voluntarily or involuntarily governed by the majority of the deputation.”

“He will be obliged, by wholesome provisions, to attend his public duty, and thus in great national questions must give a vote of the honesty of which he will find it necessary to convince his constituents.”

Finally, the House of Representatives would check the power of the Senate (and vice versa). Because representatives were selected by popular vote, the House would be “intimately connected, by its interests and feelings, with the people at large,” and it would guard against “corruption and influence” in the Senate.

Coxe covered the “nature and powers” of the House in his third essay. We’ll cover that in the next article in this series.