Federalism and the 10th Amendment: Tench Coxe Explains Delegated and Reserved Powers
“Independent of the control or interference of the federal government.”
That’s how Tench Coxe described the vast majority of power under the Constitution – reserved to the states and completely off-limits to federal authority.
Perhaps better than any other supporter of the Constitution, Coxe explained federalism – the division of powers between the state and federal governments.
Today, as we live under the largest government in world history, understanding his insights into this foundational structure of the constitution is more important than ever.
The Foundation
Thomas Jefferson described the system of federalism – as expressed in the 10th Amendment – as the foundation of the entire Constitution:
“I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.’”
Jefferson’s opinion on the constitutionality of the national bank – Feb. 15, 1791 – was ten months to the day before the 10th Amendment was ratified.
But the principle behind it wasn’t something he came up with on his own. It was a cornerstone of the ratification debates in 1787-88.
James Madison captured this structure succinctly in Federalist No. 45:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
Other prominent figures echoed this sentiment:
- James Wilson: “Every thing which is not given, is reserved.”
Edmund Randolph: “Every power not given it by this system is left with the states.” - Alexander Hamilton: “Whatever is not expressly given to the federal head, is reserved to the members.”
Here, we see a clear and unified alignment among some of the most influential supporters of ratification – the “father of the Constitution,” one of the first Supreme Court justices, and Hamilton, George Washington’s right-hand man – all affirming the same foundational principle of delegated and reserved powers.
Anti-Federalist Calls for Explicit Limits on Federal Power
The Anti-Federalists also supported this principle – but they insisted it be explicitly spelled out in the Constitution itself. For example, John Williams of New York argued that “The general government ought to be confined to certain national objects; and the States should retain such powers, as concern their own internal police.”
Similarly, George Mason said he wished for “a clause in the Constitution with respect to all powers which are not granted, that they are retained by the States. Otherwise the power of providing for the general welfare may be perverted to its destruction.”
The Anti-Federalists won this battle, resulting in the inclusion of the 10th Amendment in the Bill of Rights to explicitly enshrine the system of delegated and reserved powers that Federalists had described during the ratification debates.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Nine Categories of Power Off-Limits to the Feds
Tench Coxe was one of the most influential writers during the ratification debates. His essays, widely published and read, offered detailed explanations of the Constitution’s limits on federal power and the expansive authority reserved to the states. In one of his essays, he stated:
“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.”
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.
This included nine broad areas in which the federal government is not authorized to act – at all:
- 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
A Broad 10th Category Off-Limits to the Feds
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”
Coxe elaborated further, emphasizing what he called a “vast reservoir” of reserved powers:
“They cannot interfere with 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”
Finally, Coxe underscored sweeping limitations on federal power over state matters, securing the independence and sovereignty reserved to the states:
“They cannot interfere with 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.”
A Breakdown of Reserved Powers
Tench Coxe also approached the issue from the other side of the coin, listing 13 categories of “what the state governments must or may do.”
Governance and Security
- Training and appointing officers of the militia.
- Regulating religion.
- Determining the qualifications of electors.
- Administering laws of descent (wills and inheritance).
Elections and Constitutions
- The elections of the President, Vice President, Senators and Representatives, are exclusively in the hands of the states, even as to filling vacancies.
- Electing, commissioning, and appointing state officers.
- Altering or amending their own state constitutions.
Infrastructure and Local Governance
- Manage their separate territorial rights.
- Chartering corporations.
- Exercising police powers, such as enforcing criminal laws and addressing local disputes.
- 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.
Direct Influence on Federal Power
- 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.)
A Vast Reservoir
Tench Coxe described the expansive set of powers reserved to the states as a “vast reservoir,” entirely beyond the reach of federal interference. He emphasized the breadth and significance of these powers through detailed examples.
Coxe first summarized this vast reservoir of state powers, listing numerous areas entirely controlled by the states and off-limits to federal 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; 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”
He expanded on this theme, highlighting more state responsibilities vital to the well-being of the people:
“[The states can] 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.”
Beyond the specific examples Coxe listed, he emphasized that the states retained a virtually limitless array of additional powers, entirely off-limits to the federal government – underscoring the expansive scope of reserved powers.
“In short, besides the particulars enumerated, every thing of a domestic nature must or can be done by them.”
A Clear Divide
Through these detailed explanations, Tench Coxe painted a vivid picture of the wide range of reserved power and the specific restrictions placed on federal power – a crucial safeguard against centralization that remains as relevant today as it was in his time.
But Coxe also took things further, explaining that the very structure of the federal and state governments was fundamentally different:
“The foederal government and the state governments are neither co-ordinate, co-equal, nor even similar. They are of different natures.”
He elaborated:
“The general government is fœderal, or an union of sovereignties, for special purposes.”
And further explained:
“The state governments are social, or an association of individuals, for all the purposes of society and government.”
In short, these different governments have different foundations – and thus, different purposes.
Putting this 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.
His detailed breakdown of state and federal powers underscores a core principle of the Constitution: The federal government was never meant to control or regulate state and local matters.
Instead, the Founders designed a system where states retained sovereignty, ensuring a balance of power that would help the people protect their own liberty.
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