Tench Coxe: States and People as Checks on Federal Power
By: Mike Maharrey
In his fourth essay of “An American Citizen,” Tench Coxe countered Anti-Federalist fears of federal tyranny by arguing that the Constitution’s structure kept the people and the states as the ultimate checks on federal power.
Anti-Federalists repeatedly argued that the system under the proposed Constitution would expand and centralize government power and ultimately trample the rights of the people.
But Coxe, an influential supporter of the Constitution, argued that there were significant limits on federal power built into the system, and Anti-Federalist fears were overblown.
In his first three essays, Tench Coxe specifically addressed the presidency, the Senate, and the House of Representatives, arguing that the limits on their powers compared to the British government were “part of the wholesome precautions that are part of the new system.”
In the fourth essay, he tied things together, insisting, “The people will remain, under the proposed constitution, the fountain of power and public honor.”
“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.
He went on to point out “further securities for the safety and happiness of the people” in the structure of the Constitution itself.
Coxe began by noting that the Constitution guaranteed every state a “separate republican form of government.”
“From thence it follows, that any man or body of men, however rich or powerful, who shall make an alteration in the form of government of any state, whereby the powers thereof shall be attempted to be taken out of the hands of the people at large, will stand guilty of high treason.”
Coxe then noted, “The people may employ any wise and good citizen in the execution of the various duties of the government,” because the Constitution prohibited religious tests for officeholders.
“No religious test is ever to be required of any officer or servant of the United States.”
Similarly, the Constitution doesn’t require any “qualification in monied or landed property” to hold office.
“The office of the President, a Senator, and a Representative, and every other place of power or profit, are therefore open to the whole body of the people. Any wise, informed and upright man, be his property what it may, can exercise the trusts and powers of the state, provided he possesses the moral, religious and political virtues which are necessary to secure the confidence of his fellow citizens.”
Coxe also pointed out that the Constitution guards against the influence of foreign powers by stipulating that “no person holding an office under the United States is permitted to enjoy any foreign honors, powers or emoluments.”
Turning to the subject of debt, Coxe noted, “The people of those states which have faithfully discharged their duty to the union will be no longer subjected alone to the weight of the public debts.”
Under the Articles of Confederation, each state was responsible for its own debts. This placed a significant burden on the states. Every state ran up substantial debt during the American Revolution totalling an estimated $25 million. A few had paid their obligations, but most were still struggling with their debts when the Constitution was drafted. Article I’s spending power authorized the general government to pay these debts.
Coxe asserted, “The liberties of a people involved in debt, are as uncertain as the liberty of an individual in the same situation,” but the proposed Constitution would “cure the evil.”
Virtually all of the Anti-Federalists lamented the lack of a bill of rights in the Constitution. Coxe took this on arguing that the Articles didn’t have one either, adding it wasn’t necessary because “they are already provided for by the State Constitutions.” He went on to point out that “relating only to personal rights, they could not be mentioned in a contract among sovereign states.”
Coxe specifically addressed the lack of a provision for a trial by jury. He pointed out that under a constitutional structure that delegated specific powers to the federal government and reserved the rest to the states, the federal courts had limited jurisdiction. Furthermore, “There is nothing in the new constitution to prevent a trial by jury. No doubt it will be the mode in every case, wherein it is practicable.”
Another significant Anti-Federalist fear was that the Constitution would allow for a standing army. George Mason summed up their feelings succinctly.
“I abominate and detest the idea of a government, where there is a standing army.”
Coxe didn’t defend the idea of a standing army, conceding the military must be “regarded with a watchful eye; for it is a profession that is liable to dangerous perversion.” But he insisted that a permanent standing army wasn’t “granted or intended.” He pointed out that “there can be no provision for its continuing three years, much less for its permanent establishment.”
He also said the militia, primarily controlled by the states, would “render many troops quite unnecessary.”
While virtually everybody in the founding generation was wary of a standing army, many federalists conceded one might be necessary. But they believed it should remain small and limited. They also argued the best way to avoid a large standing army was to provide for a strong militia.
“They will form a powerful check upon the regular troops, and will generally be sufficient to overawe them—for our detached situation will seldom give occasion to raise an army, though a few scattered companies may often be necessary.” [Emphasis original]
Perhaps most significantly, Coxe argued that the worry about consolidation was overblown because the liberties of the people “are guarded by their state constitutions, and by the nature of things in the separate states.”
He pointed out that under the Constitution, state officers from the governor to sheriffs “will still be chosen within each state, without any possible interference of the federal government.”
Additionally, Coxe reminded readers that the people at large would choose their federal representatives, along with presidential electors, and the state legislatures would choose senators (prior to the change of the 17th Amendment). He then emphasized a point he made in earlier essays with a series of rhetorical questions.
Concerning the House, Coxe asked “whether it can be feared, that a majority of the Representatives, each of whom will be chosen by six thousand enlightened freemen, can betray their country?”
He then asked whether “the legislatures of a free, sovereign and independent state … can destroy our liberties?” especially given that it will also be checked by the House.
Finally, he addressed the executive branch, asking “whether a temporary limited executive officer, watched by the federal Representatives, by the Senate, by the State Legislatures, by his personal enemies among the people of his own state, by the jealousy of the people of rival states, and by the whole of the people of the Union, can ever endanger our Freedom?”
Coxe wrapped up the essay by conceding that it may contain errors, but he urged the people to “give it a trial.”
“When experience has taught its mistakes, the people, whom it preserves absolutely all powerful can reform and amend them.” [Emphasis original]
