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BRIEF CONTENTS
PREFACE xix
INTRODUCTION
A POLITICAL SUPREME COURT 1
CHAPTER ONE
JURISDICTION AND ORGANIZATION OF THE FEDERAL COURTS 27
CHAPTER TWO
THE CONSTITUTION, THE SUPREME COURT, AND JUDICIAL REVIEW 45
CHAPTER THREE
CONGRESS AND THE PRESIDENT 85
CHAPTER FOUR
FEDERALISM 138
CHAPTER FIVE
THE ELECTORAL PROCESS 176
CHAPTER SIX
THE COMMERCE CLAUSE 223
CHAPTER SEVEN
NATIONAL TAXING AND SPENDING POWER 287
CHAPTER EIGHT
PROPERTY RIGHTS AND THE DEVELOPMENT OF DUE PROCESS 311
vii
viii Brief Contents
CHAPTER NINE
THE BILL OF RIGHTS 364
CHAPTER TEN
CRIMINAL JUSTICE 391
CHAPTER ELEVEN
FREEDOM OF EXPRESSION 466
CHAPTER TWELVE
RELIGIOUS LIBERTY 525
CHAPTER THIRTEEN
PRIVACY 572
CHAPTER FOURTEEN
EQUAL PROTECTION OF THE LAWS 612
CHAPTER FIFTEEN
SECURITY AND FREEDOM IN WARTIME 671
APPENDIX A
THE CONSTITUTION OF THE UNITED STATES OF AMERICA 695
APPENDIX B
JUSTICES OF THE SUPREME COURT 707
APPENDIX C
PRESIDENTS AND JUSTICES 711
APPENDIX D
AMERICAN CONSTITUTIONAL DEVELOPMENT AS REFLECTED IN A CHRONOLOGY
OF CASES REPRINTED IN THIS BOOK 716
GLOSSARY 723
INDEX OF CASES 737
INDEX OF SUBJECTS AND NAMES 747
CONTENTS
PREFACE xix
INTRODUCTION
A POLITICAL SUPREME COURT 1
Constitutional Interpretation and Political Choice 2
A Changing Judiciary 3
Appointment Politics, 1968–1984 6
Powell, Rehnquist, and Stevens 8
Key Terms 23
Queries 23
Selected Readings on Federal Judicial Appointments 24
Selected Readings on the Supreme Court 25
Selected Biographies 26
CHAPTER ONE
JURISDICTION AND ORGANIZATION OF THE FEDERAL COURTS 27
The Judicial Power 27
Supreme Court Decision Making 34
Source Materials 38
Reading a Supreme Court Decision 41
Key Terms 42
Queries 42
Selected Readings 43
CHAPTER TWO
THE CONSTITUTION, THE SUPREME COURT, AND JUDICIAL REVIEW 45
Granting and Limiting Power 45
The Doctrine of Judicial Review 47
Influences on Judicial Decision Making 51
ix
x Contents
Checks on Judicial Power 52

Finality of Supreme Court Decisions 54
Approaches to Constitutional Interpretation 56
Judicial Review—A Distinctively American Contribution 58
Key Terms 59
Queries 59
I. Establishing and Testing Judicial Review 61
Unstaged Debate of 1788: Robert Yates v. Alexander Hamilton 61
Marbury v. Madison (1803) 64
Eakin v. Raub (1825) 68
Scott v. Sandford (1857) 71
II. External and Internal Checks on Judicial Power 74
Ex parte McCardle (1869) 74
Baker v. Carr (1962) 76
III. Finality of Supreme Court Decisions 76
City of Boerne v. Flores (1997) 76
Unstaged Debate: Andrew Jackson, Abraham Lincoln, and
Arkansas v. The Supreme Court 79
IV. Approaches to Constitutional Interpretation 81
Unstaged Debate of 1986: Judge Bork v. Professor Tribe 81
CHAPTER THREE
CONGRESS AND THE PRESIDENT 85
Separation of Powers 85
Congress and Lawmaking 87
The President and Executive Power 90
Foreign Policy and National Security 94
Key Terms 98
Queries 98
I. Delegation and Lawmaking 100
Mistretta v. United States (1989) 100
Immigration and Naturalization Service v. Chadha (1983) 102
Clinton v. City of New York (1998) 105
II. Congressional Investigations 109
Watkins v. United States (1957) 109
Barenblatt v. United States (1959) 112
III. Presidential Privilege and Immunity 113
United States v. Nixon (1974) 113
Nixon v. Fitzgerald (1982) 116
Clinton v. Jones (1997) 118
IV. Appointment and Removal 121
Myers v. United States (1926) 121
Humphrey’s Executor v. United States (1935) 124
Morrison v. Olson (1988) 125
V. Foreign Policy and National Security 128
Ex parte Milligan (1866) 128
Contents xi
Missouri v. Holland (1920) 128

United States v. Curtiss-Wright Export Corp. (1936) 130
Korematsu v. United States (1944) 131
Youngstown Sheet & Tube Co. v. Sawyer (1952) 132
United States v. United States District Court (1972) 136
War Powers Resolution (1973) 136
Boumediene v. Bush (2008) 137
CHAPTER FOUR
FEDERALISM 138
Sources of Contention 139
Nature of National Authority 140
Concepts of Federalism 143
The Return of Dual Federalism 147
Key Terms 151
Queries 151
I. Defining the Nature of the Union 153
Chisholm v. Georgia (1793) 153
McCulloch v. Maryland (1819) 155
Cohens v. Virginia (1821) 160
Collector v. Day (1871) 165
II. National Supremacy v. Dual Federalism in the Modern Era 166
U.S. Term Limits, Inc. v. Thornton (1995) 166
United States v. Morrison (2000) 171
National Federation of Independent Business v. Sebelius (2012) 175
CHAPTER FIVE
THE ELECTORAL PROCESS 176
Voting 177
Representation 179
Party Politics and Campaigns 184
Key Terms 186
Queries 186
I. Voting 188
Bush v. Gore (2000) 188
II. Representation 192
Baker v. Carr (1962) 192
Reynolds v. Sims (1964) 195
Vieth v. Jubelirer (2004) 199
Miller v. Johnson (1995) 204
III. Party Politics and Campaigns 208
California Democratic Party v. Jones (2000) 208
McConnell v. Federal Election Commission (2003) 211
Citizens United v. Federal Election Commission (2010) 218
xii Contents
CHAPTER SIX
THE COMMERCE CLAUSE 223
Views of the Framers 224
The Marshall Doctrine 225
The Doctrine of the Taney Court 227
States and the Commerce Clause Today 228
The National Commerce Power: Competing Visions 231
Constitutional Crisis 233
The Commerce Power Reborn 238
A Return to Limitations 240
Key Terms 241
Queries 241
I. Defining the Commerce Power 243
Gibbons v. Ogden (1824) 243
Cooley v. Board of Wardens (1851) 247
II. States and the Commerce Power 249
Southern Pacific Co. v. Arizona (1945) 249
Philadelphia v. New Jersey (1978) 252
Granholm v. Heald (2005) 254
III. Competing Visions of Congress’ Commerce Power 259
United States v. E. C. Knight Co. (1895) 259
Champion v. Ames (1903) 261
Hammer v. Dagenhart (1918) 263
Stafford v. Wallace (1922) 265
IV. The New Deal in Court 267
Carter v. Carter Coal Co. (1936) 267
National Labor Relations Board v. Jones & Laughlin
Steel Corporation (1937) 270
V. Contemporary Views of the Commerce Power 272
Wickard v. Filburn (1942) 272
Heart of Atlanta Motel v. United States; Katzenbach v. McClung (1964) 274
United States v. Lopez (1995) 276
United States v. Morrison (2000) 279
National Federation of Independent Business v. Sebelius (2012) 279
CHAPTER SEVEN
NATIONAL TAXING AND SPENDING POWER 287
Direct and Indirect Taxes 288
Regulation Through Taxation 289
Regulation Through Spending 292
Key Terms 293
Queries 293
I. Direct and Indirect Taxes 295
Hylton v. United States (1796) 295
Pollock v. Farmers’ Loan & Trust Company (1895) 296
II. Regulation Through Taxation 299
McCray v. United States (1904) 299
Bailey v. Drexel Furniture Co. (1922) 300
Contents xiii
III. Regulation Through Spending 302

United States v. Butler (1936) 302
South Dakota v. Dole (1987) 305
Rumsfeld v. Forum for Academic and Institutional
Rights, Inc. (2006) 307
CHAPTER EIGHT
PROPERTY RIGHTS AND THE DEVELOPMENT OF DUE PROCESS 311
The Doctrine of Vested Rights 312
Expansion of the Contract Clause 313
Twilight of the Contract Clause 315
Origins of Due Process 316
Judicial Restraint and the Fourteenth Amendment 317
Judicial Activism and the Fourteenth Amendment 318
Search for a Role: Footnote Four 322
Takings, Land Use, and the Fifth Amendment 324
“New Property” and Due Process of Law 325
Key Terms 328
Queries 328
I. Vested Rights and the Ex Post Facto Clause 330
Calder v. Bull (1798) 330
II. The Contract Clause 332
Dartmouth College v. Woodward (1819) 332
Charles River Bridge v. Warren Bridge (1837) 335
Home Building & Loan Association v. Blaisdell (1934) 338
III. Property Rights and the Fourteenth Amendment 340
Slaughterhouse Cases (1873) 340
Munn v. Illinois (1877) 345
Unstaged Debate of 1893: Justice Brewer v. Professor Thayer 348
Lochner v. New York (1905) 351
Nebbia v. New York (1934) 354
West Coast Hotel Co. v. Parrish (1937) 356
Ferguson v. Skrupa (1963) 358
IV. Fifth Amendment Takings and Land Use 359
Kelo v. City of New London (2005) 359
CHAPTER NINE
THE BILL OF RIGHTS 364
Paths of Due Process of Law 364
Creation of the Bill of Rights 366
Applying the Bill of Rights to the States 367
The New Judicial Federalism: A New Double Standard 371
The Second Amendment 372
Key Terms 373
Queries 373
I. Drive for a Bill of Rights 375
Jefferson-Madison Correspondence, 1787–1789 375
xiv Contents
II. The Bill of Rights and the States 377

Palko v. Connecticut (1937) 377
Adamson v. California (1947) 379
Duncan v. Louisiana (1968) 381
III. The Second Amendment 383
District of Columbia v. Heller (2008) 383
McDonald v. City of Chicago (2010) 387
CHAPTER TEN
CRIMINAL JUSTICE 391
Searches and Seizures 392
Right to Counsel 401
Self-Incrimination 403
Punishment 406
Key Terms 410
Queries 410
I. Searches and Seizures 411
A. Whose Rights? 411
Minnesota v. Carter (1998) 411
B. The Exclusionary Rule 413
Mapp v. Ohio (1961) 413
United States v. Leon (1984) 414
C. Search Incident to Arrest 417
Chimel v. California (1969) 417
Riley v. California and United States v. Wurie (2014) 419
D. Automobile Searches 424
California v. Acevedo (1991) 424
E. Electronic Surveillance 427
Olmstead v. United States (1928) 427
Katz v. United States (1967) 429
United States v. Jones (2012) 432
F. Arrests, Detentions, and Frisks 436
Atwater v. City of Lago Vista (2001) 436
Terry v. Ohio (1968) 440
G. Administrative Searches 442
Board of Education of Pottawatomie County v. Earls (2002) 442
II. Right to Counsel 446
Powell v. Alabama (1932) 446
Gideon v. Wainwright (1963) 448
III. Self-Incrimination 450
Miranda v. Arizona (1966) 450
Dickerson v. United States (2000) 454
IV. Capital Punishment 458
Gregg v. Georgia (1976) 458
Roper v. Simmons (2005) 461
Contents xv
CHAPTER ELEVEN
FREEDOM OF EXPRESSION 466
Tests of Freedom 467
Internal Security 468
Public Forum 471
Protest and Symbolic Speech 473
Freedom of Association 476
Print and Electronic Media 477
Postscript 482
Key Terms 482
Queries 482
I. Internal Security 484
Schenck v. United States (1919) 484
Gitlow v. New York (1925) 485
Whitney v. California (1927) 487
Dennis v. United States (1951) 489
Brandenburg v. Ohio (1969) 492
II. Public Forum 494
Good News Club v. Milford Central School (2001) 494
Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015) 497
III. Protest and Symbolic Speech 501
United States v. O’Brien (1968) 501
Texas v. Johnson (1989) 504
Virginia v. Black (2003) 506
IV. Freedom of Association 511
Boy Scouts of America and Monmouth Council v. Dale (2000) 511
Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006) 514
V. Print and Electronic Media 514
New York Times Co. v. Sullivan (1964) 514
New York Times Co. v. United States (1971) 516
Ashcroft v. Free Speech Coalition (2002) 520
CHAPTER TWELVE
RELIGIOUS LIBERTY 525
Competing Visions 525
The Establishment Clause 527
The Free Exercise Clause 532
Values in Tension 536
Key Terms 536
Queries 537
I. Religion in Public Schools and Other Official Settings 538
Santa Fe Independent School District v. Doe (2000) 538
Town of Greece v. Galloway (2014) 541
xvi Contents
II. State Aid to Religious Schools 546

Lemon v. Kurtzman (1971) 546
Agostini v. Felton (1997) 549
Zelman v. Simmons-Harris (2002) 554
III. Free Exercise of Religion 558
The Flag-Salute Cases 558
Minersville School District v. Gobitis (1940) 559
Justice Frankfurter to Justice Stone, May 27, 1940: A Qualified
Plea for Judicial Self-Restraint 562
West Virginia State Board of Education v. Barnette (1943) 564
Sherbert v. Verner (1963) 566
Employment Division v. Smith (1990) 568
City of Boerne v. Flores (1997) 571
CHAPTER THIRTEEN
PRIVACY 572
Dimensions of Privacy 572
Private Law and Public Law Beginnings 573
Invigorating a Right of Privacy 575
Abortion 576
A Developing Concept 579
Key Terms 583
Queries 583
I. Invigorating a Right of Privacy 584
Griswold v. Connecticut (1965) 584
II. Abortion 586
Roe v. Wade (1973) 586
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) 590
Whole Woman’s Health v. Hellerstedt (2016) 595
III. Sexual Orientation and Marriage Equality 601
Lawrence v. Texas (2003) 601
Obergefell v. Hodges (2015) 606
CHAPTER FOURTEEN
EQUAL PROTECTION OF THE LAWS 612
Identifying Forbidden Discrimination 613
Racial Discrimination 614
State Action 619
Gender Discrimination 620
Fundamental Rights Analysis 622
Congressional Protection of Civil Rights 622
Affirmative Action 624
Key Terms 626
Queries 627
I. Identifying Forbidden Discrimination 628
Contents xvii
Cleburne v. Cleburne Living Center (1985) 628

Romer v. Evans (1996) 631
II. Racial Discrimination 634
Plessy v. Ferguson (1896) 634
Brown v. Board of Education (First Case) (1954) 636
Bolling v. Sharpe (1954) 638
Brown v. Board of Education (Second Case) (1955) 639
Milliken v. Bradley (1974) 640
Loving v. Virginia (1967) 642
III. State Action 644
Civil Rights Cases (United States v. Stanley) (1883) 644
IV. Gender Discrimination 647
Frontiero v. Richardson (1973) 647
Craig v. Boren (1976) 649
Mississippi University for Women v. Hogan (1982) 650
V. Fundamental Rights Analysis 653
Shapiro v. Thompson (1969) 653
San Antonio Independent School District v. Rodriguez (1973) 655
VI. Affirmative Action 658
Parents Involved in Community Schools v. Seattle School
District No. 1 (2007) 658
Fisher v. University of Texas at Austin (2016) 663
CHAPTER FIFTEEN
SECURITY AND FREEDOM IN WARTIME 671
The Fragility of Civil Liberties 671
The Patriot and Freedom Acts 672
Antiterrorist Policies in Court 674
“Inter Arma Silent Leges” 677
Key Terms 678
Queries 678
Ex parte Milligan (1866) 679
Ex parte Quirin (1942) 681
New York Times Company v. United States (1971) 686
Boumediene v. Bush (2008) 689
APPENDIX A
THE CONSTITUTION OF THE UNITED STATES OF AMERICA 695
APPENDIX B
JUSTICES OF THE SUPREME COURT 707
APPENDIX C
PRESIDENTS AND JUSTICES 711
xviii Contents
APPENDIX D
AMERICAN CONSTITUTIONAL DEVELOPMENT AS REFLECTED IN A CHRONOLOGY
OF CASES REPRINTED IN THIS BOOK 716
GLOSSARY 723
INDEX OF CASES 737
INDEX OF SUBJECTS AND NAMES 747
PREFACE
T he Supreme Court heard arguments in two cases on Wednesday, January 20,

2016. When the Court next convened for oral arguments after a recess on Mon-
day, February 22, it did so without Justice Antonin Scalia, whose death on February
13—just four weeks shy of his 80th birthday and in his 29th year on the Court—not
only shocked the nation but tossed the future of the Court squarely into the political
arena. His death was also only the second of a sitting member of the Court in the
previous 62 years. To fill the vacancy President Barack Obama on March 16 nom-
inated Merrick G. Garland, age 63, who had been Chief Judge of the United States
Court of Appeals for the District of Columbia Circuit since 2013 and a member of
that court since his nomination by President Clinton in 1997 that was confirmed
by a Democratic-controlled Senate 76–23, in a vote that included support from
30 Republicans. However, with the Senate now in Republican hands, its leadership
insisted that they would not act on any nomination for Scalia’s seat—and hence on
the future direction of the Court—until after the people had spoken in the Novem-
ber presidential election. Thus the Court faced the prospect of functioning for an
undetermined and conceivably extensive period of time with a complement of only
eight Justices. Indeed, by July, inaction on the Garland nomination surpassed the
previous record of 125 days between nomination and confirmation set in 1916 when
President Woodrow Wilson named Louis Brandeis for Justice Joseph R. Lamar’s seat
on the Bench. “If Republicans in the Senate refuse even to consider a nominee
in the hopes of running out the clock until they can elect a president from their
own party, so that he can nominate his own justice to the Supreme Court,” cau-
tioned President Obama in an op-ed essay in the Wall Street Journal, “then they will
effectively nullify the ability of any president from the opposing party to make an
appointment to the nation’s highest court. They would reduce the very functioning
of the judicial branch of the government to another political leverage point.” In
the wake of Republican nominee Donald J. Trump’s victory over Hillary Rodham
Clinton, the Democratic nominee, coupled with continued Republican control of
the U.S. Senate, stalemate nonetheless persisted as the Garland nomination expired
at noon on January 3, 2017, when the new 115th Congress convened. It had lan-
guished for a total of 293 days.
As this book went into production after the election, political maneuverings
continued with President Trump’s nomination on January 31, 2017, of Judge Neil M.
Gorsuch of the Court of Appeals for the Eighth Circuit. After Republicans invoked
the so-called “nuclear option” to end a filibuster by Democrats, Gorsuch was con-
firmed 54–45 on April 7 and sworn in on April 9, ending a 14 month struggle over
Scalia’s seat. Senate action stood as a vivid reminder that Supreme Court justices
are not merely lawyers who wear robes but major players whose distinctive work
in interpreting the Constitution and statutes helps to shape American government,
individual freedom, and the political life of the nation.
xix
xx Preface
The partisan tension surrounding Scalia’s replacement must be considered

alongside three facts: First, on a substantial number of major constitutional issues
in recent terms, the Court has split 5–4 or 6–3. Second, as of Election Day, 2016,
3 of the 8 justices were already at least 77 years of age. Third, and because of the
second, future presidents will have a substantial influence not only on the make-up
of the Court but therefore also on the future of American constitutional law. With
that prospect in mind, the Introduction retains its distinctive focus on institutional
development and the politics of judicial selection.
This edition, following the pattern set in earlier ones, is rooted in the con-
viction that constitutional law is an intricate blend of politics, history, and com-
peting values. Even though judicial decisions are couched in the language and
method used by lawyers, constitutional cases are proper turf for students of pol-
itics and government. This is because the judiciary is the place where law and
politics meet.
Accordingly, the book emphasizes the ongoing importance of constitutional
interpretation. Interpretation embodies choices about the meaning of the Constitu-
tion. These choices in turn affect the operation of the political system, help to define
individual rights and freedoms, and influence the quality of life that Americans
enjoy. Constitutional interpretation has thus made the justices participants in the
governing process. Their decisions embody selections among hard (and consequen-
tial) alternatives, rather than the easy dictates of a cold mechanical process. The
book invites students to become party to the dialogue that the Court has maintained
with the American people for over two centuries, a dialogue that reflects a historic
attraction to, and suspicion of, majority rule—on the part of both the people and
the Court.
NEW TO THIS EDITION
• Throughout: New material in both essays and excerpted cases reflects recent devel-
opments, especially from the 2011–2012, 2012–2013, 2013–2014, 2014–2015, and
2015–2016 terms. Moreover, all data in tables have been updated.
• The chapter essays contain discussion of 30 additional cases.
• The Introduction, which is the first substantive chapter in the book, includes new
material on the change in the Senate regarding use of the filibuster in nomination
situations, on the stalemate in the Senate following the death of Justice Scalia, and on
Court-related facets of the 2016 presidential election.
• Chapter One includes the most recent data on the Supreme Court’s caseload.
• Chapter Two includes the most recent data on state and federal laws declared
unconstitutional.
• Chapter Three reviews the recent military actions in Afghanistan, Libya, and Iraq, and
the Court’s decision on the recess appointment power.
• Chapter Four adds a cross reference to National Federation of Independent Business v.
Sebelius (2012) which is excerpted in Chapter Six.
• Chapter Five reviews important decisions relating to the Voting Rights Act and
redistricting.
• Chapter Six adds National Federation of Independent Business v. Sebelius (2012) which
is also cross-referenced in Chapter Four, given the significance of the case for both
federalism and the commerce power.
Preface xxi
• Chapter Ten adds both United States v. Jones (2012) and Riley v. California (2014), and
has been updated with the most recent data on stop-and-frisk policy in New York City
as well as for FISA and other types of electronic surveillance.
• Chapter Eleven adds Walker v. Sons of Confederate Veterans (2015).
• Chapter Twelve adds Town of Greece v. Galloway (2014).
• Chapter Thirteen adds both Obergefell v. Hodges (2015) and Whole Woman’s Health v.
Hellerstedt (2016), depicting the latter as marking a distinct change in how the Supreme
Court reviews regulations affecting abortions.
• Chapter Fourteen adds both Loving v. Virginia (1967) and Fisher v. University of Texas
at Austin (2016) and particularly places the latter case in the context of earlier rulings
on affirmative action.
• Chapter Fifteen describes the Freedom Act (2015) that modified the Patriot Act (2001).
• The Glossary adds seven new terms that draw from the Key Terms feature that follows
each chapter essay.
• The Appendix section of the book is now organized into four parts: Appendix A con-
sists of the Constitution of the United States of America, supplemented by explanatory
footnotes where appropriate. Appendix B displays a table of all justices of the Supreme
Court, arranged by natural or discrete court. Appendix C displays a table of the justices,
arranged by presidential term. Appendix D consists of a table depicting American con-
stitutional development as reflected in a chronology of cases reprinted in this book. Also
organized by presidential term, it can be viewed as a chronological table of contents.
FEATURES
• Essays. A distinctive feature of the book remains the essay preceding the cases in each
chapter. These essays supply the historical and political contexts and trace the mean-
dering thread of constitutional doctrine across major decisions.
• Case Excerpts. The case excerpts that follow the essays—essential for learning and
in depicting constitutional interpretation at work—are as generous as space allows.
As shown in the contents, cases in each chapter are grouped by subtopic within that
chapter, loosely corresponding to the organization of the essay itself.
• Unstaged Debates. Chapters Two and Eight each contain an “unstaged debate” that
highlights a topic covered within the chapter.
• Views inside the Court. Chapters Eight and Twelve each contain an example of a
justice’s attempt to persuade one or more colleagues as opinions were being drafted.
• Tips on reading a Supreme Court decision are presented in Chapter One.
• Court-related publications as well as the abundant Court-related resources available on
the Internet are surveyed in Chapter One.
• Glossary. Complementing both the essays and case excerpts is the glossary, which
contains a definition of every term that is set in boldface in the essays and listed among
the key terms at the conclusion of each chapter essay.
• Selected Readings. To complement both the essays and excerpted cases, each chap-
ter essay concludes with a short and updated list of suggestions for further reading.
• Boldface italics. Names of cases discussed in the essays that are also reprinted in the
book appear in boldface italics.
• Headnotes. Each case headnote features not only a summary of the background of the
case but also the voting alignment for that case. The case citations above each head-
note identifying printed sources also include the URL for online access to the case.
xxii Preface
• Throughout, the book’s few footnotes scattered are numbered consecutively by chap-
ter. In every instance, text appearing within excerpted opinions is the Court’s, except
for brief insertions within brackets for dates or case names or unless specially marked
“—ED.” as having been inserted for this book.
• Web site. The site complements the seventeenth edition and facilitates teaching and
learning in at least three ways: (1) The site contains important decisions handed down
after this edition went to press, which are edited in the same manner as cases excerpted
in the book. (2) The site retains cases from previous editions that were displaced by
new material and so may be used as a case archive. Faculty designing syllabi thus have
a larger number of edited cases from which to choose. (3) Finally, the site contains
useful noncase material as well as links to other Court-related sites.
ACKNOWLEDGMENTS
Any new edition of this book necessarily brings to mind the legacy of Professor
Alpheus Thomas Mason—great man, teacher, scholar, mentor and friend—who
through more than six decades of teaching in the Department of Politics at Prince-
ton University and elsewhere following his retirement literally touched thousands of
students, undergraduate and graduate alike.
Through the years since publication of the first edition of American Consti-
tutional Law in 1954, general readers, faculty, and students have contributed to
its betterment. Their suggestions, reflected in both deletions and additions, indi-
cate the measure of my indebtedness. I am especially grateful to those scholars
who thoroughly reviewed the sixteenth edition and made recommendations for the
seventeenth. These include Jim R. Alexander, Texas Woman’s University; Richard
A. Glenn, Millersville University; Jeffrey D. Hilmer, State University of New York
at Potsdam; Morris Jenkins, Southeast Missouri State University; John C. Kilwein,
West Virginia University; Christopher Malone, Lehman College (CUNY); Mark C.
Miller, Clark University; Kati Mohammad-Zadeh, University of Minnesota; and Kent
Rissmiller, Worcester Polytechnic Institute. Special thanks are due also to Susan
Dicklitch-Nelson and Jennifer Kibbe, current and most recent chair of the Depart-
ment of Government at Franklin & Marshall College and Jessica Bortz, academic
coordinator for the department, as well as to my students, past and present, in
Government 314 and 315. I am also grateful to Tom Karel, collection development
librarian at the Franklin & Marshall College Library, who ably assisted in ferreting
out sometimes obscure sources.
As always, deserving of much credit for their wisdom, guidance, and forbear-
ance are the many people at Routledge who have supported this book. In partic-
ular, my thanks go to senior politics editor Jennifer Knerr, senior editorial assistant
Ze’ev Sudry, and production editor Miriam Armstong. I would also like to thank our
copy editor, Christianne Mariano of Bookbright Media, and her production manager
Jamie Vidich.
Much gratitude is owed also to family—my son Todd and his wife Stacy, my
daughter Claire and her husband Michael, my grandsons Jackson, Everett, and Ben-
jamin, and especially Ellen, my wife for 50 years. Their love and devotion have been
both sustaining and reassuring.
Preface xxiii
Finally, and sadly, I note the passing of John H. Vanderzell (1924–2016), who
was Dean of the College at Franklin & Marshall when I was hired and later a col-
league in the Department of Government. Over a career spanning some 37 years
John made a remarkable impact as a teacher and mentor.
Questions, suggestions, and comments about the book are welcomed via
e-mail: grier.stephenson@fandm.edu.
D. G. S., Jr.
INTRODUCTION
A Political Supreme Court
There are two parties in the United States, most decidedly opposed to each other as
to the rights, powers and province of the judiciary. . . . One party almost claims infal-
libility for the judges, and would hedge them round about in such a manner that they
cannot be reached by popular opinion at all, and . . . the other would subject them to
the vacillations of popular prejudice and seemingly require it of them to define and
administer the law, and interpret the Constitution, according to the real or apparent
expediency of things.
—NILES’ WEEKLY REGISTER (1822)
I t was one of George Washington’s first concerns as president: Who would sit on
the Supreme Court of the United States? “Impressed with a conviction that the
true administration of justice is the firmest pillar of good government,” he wrote
future Attorney General Edmund Randolph in 1789, “I have considered the first
arrangement of the judicial department as essential to the happiness of our coun-
try and the stability of its political system.” Under the Articles of Confederation,
which the recently ratified Constitution replaced, there had been no national judi-
ciary. The Court’s role in the new political system was unclear, but Washington
realized the impact the Court might have in the young Republic. This required,
he told Randolph, “the selection of the fittest characters to expound the laws and
dispense justice. . . .” As he selected the six justices Congress had authorized,
Washington also made sure that each section of the nation was represented and
that the six were strong supporters of the new Constitution.
The first session of the newly constituted Supreme Court was scheduled for
February 1, 1790, in the Exchange Building at the foot of Broad Street in New York
City. The occasion was inauspicious. Only three of the six justices were present,
so the Court adjourned until February 2. By then a fourth justice had arrived. In
contrast to the black robes worn today, the justices were dressed in black and red
gowns. A newspaper account of the day reported, “As no business appeared to
require immediate notice, the Court was adjourned.”
1
2 Introduction
Against the background of the Court’s beginnings in 1790, anyone embarking

on the study of constitutional law today is aided by an appreciation of three points.
First, the justices have had an impact on American life that can scarcely be exagger-
ated. This reality is made possible by and is bound up with democratic politics and a
written Constitution. Students of political science therefore pay attention to Supreme
Court decisions because they matter. As Washington anticipated, what the Court
does—or does not do—affects the allocation of power. Second, the Court of Wash-
ington’s time was not the Court of today. Like Congress and the presidency, it has
changed markedly as an institution. Third, even though people frequently think of
the Court as being “above” politics, it is not. From the outset, the membership of the
Supreme Court has consisted of politicians (all justices have had some experience in
public affairs, and many were active in partisan politics before going on the bench)
appointed by politicians (presidents) and confirmed by politicians (senators). More-
over, the Court’s decisions have given the justices a hand in governing the nation.
That fact alone makes the Court political. This introductory chapter considers these
points in turn. Later chapters will explore the organization and jurisdiction of the
federal courts and many of the constitutional issues that have bedeviled the justices
and the nation for more than two centuries.
CONSTITUTIONAL INTERPRETATION AND POLITICAL CHOICE
“[W]e must never forget that it is a constitution1 we are expounding.” With this
commanding reminder, Chief Justice John Marshall interrupted a closely reasoned
argument in McCulloch v. Maryland (1819).2 He did not pause to spell out what
he had in mind. His meaning emerged from other passages in the opinion.
As Chapter Four will show, Marshall found in the Constitution a deep reservoir
of congressional power and a subordinate place for the states in the federal system.
Even without express authorization in the Constitution, Congress could charter a
national bank. Furthermore, Maryland and other states could not tax it. The Supreme
Court, as expounder of the Constitution, would correspondingly have a narrow but
nonetheless important role, guarding national over state interests. The results of
McCulloch have been far-reaching.
In McCulloch, Marshall made constitutional law.3 Constitutional law or
jurisprudence consists of the prevailing meaning of the Constitution as found
mainly in decisions by the U.S. Supreme Court. As law, these decisions are “legal,”
to be sure, but the law they announce is not ordinary law. Because it deals with
fundamental matters such as the organization of government and the authority of
officials over the lives of citizens, constitutional law is a very special kind of law,
fusing politics, history, and political philosophy. This art of interpreting the Con-
stitution is a lawyer’s art only in the narrow sense that all justices of the Supreme
Court have been lawyers, even though some people are surprised to learn that
the Constitution does not require that the justices be lawyers or even that they
have judicial experience. But the justices have had to be more than mere legal
technicians. Supreme Court justices succeed as credible constitutional authorities
to the degree that they are persuasive that it is the Constitution, not their individual
preferences, that speak.
A theme of this book is the continuing importance of constitutional interpre-
tation. After some 230 years, the Constitution is far more than a historic relic on
display for tourists visiting the National Archives in Washington. The Constitution
is the vital foundation of our political system. Broad or narrow, the prevailing
Introduction 3
interpretation of the Constitution at different times has been a major influence on

the kind of nation and society Americans have enjoyed. Interpretation requires
choice and is always the product of contending values. Some of these ideas pro-
mote centralized power; others control by the states. Some enlarge or diminish the
influence of one branch of the national government in relation to another. Some
expand individual liberties; others expand the powers of government, state and
national, at the expense of the individual. Still others allow government to protect
minorities from majorities.
Constitutional interpretation occurs when the Supreme Court and other
courts decide cases that require judges to give meaning to particular words and
passages in the Constitution. Cases are disputes handled by a court. They may pit
one individual against another, the government against an individual or corporation,
and so forth. Cases are thus the raw material of the judicial process. Although many
cases do not involve conflicting interpretations of the Constitution, those that do
enable courts to apply the nation’s fundamental law—largely crafted for an agrarian
society near the end of the eighteenth century—to the needs of a technological
nation in the twenty-first century.
The justices long ago established the Supreme Court as the oracle of the
Constitution through the power of judicial review: the authority to set aside laws
passed by Congress and the state legislatures as being contrary to the Constitution.
Accordingly, judicial review is law steeped in politics. The development of judicial
review has meant that two branches of the national government—Congress and
the presidency—are preoccupied with partisan pressures. The third branch—the
judiciary—is preoccupied with constitutional principles packed with political sig-
nificance. Constitutional interpretation is political in the broadest sense because it
makes courts, especially the Supreme Court, participants in the process of govern-
ment. American courts are therefore distinctive because they routinely speak the
language of the fundamental values of the political system.
A CHANGING JUDICIARY
Understanding constitutional law today is helped by an awareness of the Court’s

institutional development.
BEGINNINGS. The Court’s first decade was characterized by obscurity, weakness,
and uncertainty. To a degree, each was both a cause and an effect of a high turn-
over in membership, an absence of effective leadership, and relatively few cases to
decide. After George Washington filled the six positions Congress had authorized,
he and his successor, John Adams, encountered eight vacancies between 1790 and
1800. Moreover, the Court had three chief justices during the same period (John Jay,
John Rutledge, and Oliver Ellsworth).
For some early jurists, other positions were more appealing. Washington’s
first choice for one of the initial appointments in 1789 was Robert Harrison. Five
days after his confirmation by the Senate he was selected chancellor of Maryland,
a position he preferred to the seat on the Supreme Court. Without having attended
a single session of the Court, John Rutledge resigned as associate justice in 1791
to become chief justice of South Carolina. He would later return when Washington
handed him a recess appointment to be the second chief justice, a nomination
the Senate rejected a few months later. (A recess appointment allows the president
to fill a vacancy when the Senate is not in session. It expires at the end of the next
session unless the Senate has acted on the nomination.) Chief Justice Jay did not
4 Introduction
attend a session of the Court after 1793; accepted a diplomatic mission to England
in 1794, which led to an accord that today bears his name; and resigned in 1795 to
become governor of New York. Departing Treasury Secretary Alexander Hamilton
then turned down Washington’s offer of the chief justiceship so he could resume
law practice in New York. Today, presidents are rarely rebuffed by prospective
nominees. Moreover, a justice’s tenure is usually long, with both the average and
median length of service for justices appointed since 1900 equaling four presidential
terms.
Detracting from the attractiveness of the high bench in the early years was the
circuit riding Congress imposed on the justices, a duty not finally eliminated until
1891. In addition to sitting collectively as the Supreme Court, justices sat as judges
of the circuit courts, one of the two types of lower federal courts established by
the Judiciary Act of 1789. Though the act provided for three types of courts (district
courts, circuit courts, and the Supreme Court), it authorized the appointment of
judges only for the district courts and the Supreme Court. Except for a brief period
in 1801–1802, no separate circuit judgeships existed until 1855 for California and
then in 1869 for the rest of the nation. Each circuit court was at first staffed by two
justices (a number soon reduced to one) and one district judge. As a result, the
early justices spent far more time holding circuit court than they did sitting on the
Supreme Court. Nonetheless, though small in number, some of the Court’s decisions
in this first decade—three of which are reprinted in this book—were instrumental in
laying the foundations of an enlarged judicial power that emerged in the nineteenth
century.
Whether a justice traveled by carriage or by boat, riding circuit was onerous.
The rigors must have tested devotion to Court and country. Not only were the dis-
tances long, but justices paid expenses out of their salaries. Accommodations were
rarely ideal. Justice Cushing once found himself with 12 other lodgers in a single
room, and Justice Iredell reported encountering “a bed fellow of the wrong sort.”
While crossing the frozen Susquehanna River at Havre de Grace, Maryland, Justice
Chase fell through the ice and almost drowned.
THE COURT COMES OF AGE. Although the Supreme Court had three chief justices in
its first decade, the combined service of the next three chief justices (John Marshall,
Roger Taney, and Salmon Chase) totaled 72 years. As an institution of American
government, the Supreme Court owes much to John Marshall, sometimes called “the
Great Chief Justice” as if no other occupant of that office could ever be his equal.
Appointed in the last days of John Adams’s term after former Chief Justice Jay had
refused reappointment (in declining, Jay wrote Adams that the Court “would not
obtain the energy, weight and dignity which are essential to its affording due sup-
port to the National Government”), Marshall served 34 years (1801–1835), longer
than any other chief.
Marshall dominated the Court like no chief justice before or since, making
the Court the institution Jay had doubted it could become. Some of the factors that
contributed to Marshall’s influence were his personality and political acumen, the
issues embedded within the cases the Court decided, and his determination to use
the federal judiciary as a means to reinforce constitutional principles he thought vital
to the advancement of the nation. In addition, circumstances of life in Washington—
the justices resided and took their meals at the same boardinghouse and traveled
together across town to the small courtroom in the Capitol basement—made it
easier for a strong-willed individual like Marshall to influence his colleagues. Mar-
shall also ended the practice of seriatim opinions inherited from English courts
Introduction 5
whereby each judge gave his view of the case. Henceforth, the Court would speak
with one voice—the opinion of the Court—and the voice was usually Marshall’s.
JUDICIAL BUSINESS IN THE NINETEENTH CENTURY. Despite Marshall’s deserved reputa-
tion in constitutional law, the bulk of the Court’s work in his time and for years
afterward was nonconstitutional in nature. Private law cases vastly outnumbered
public law cases. In fact, of the 1,121 cases the Court decided during Marshall’s
tenure, only 76 raised federal constitutional issues. The majority involved admiralty
and maritime issues (these cases were numerous given the fact that most of the
nation’s commerce before the Civil War was waterborne), common-law matters,
and diversity disputes. (Created by the Judiciary Act of 1789, diversity jurisdic-
tion allows federal courts to hear some suits involving ordinary matters of state
law when the parties are citizens of different states.) In 1825, for example, there
were no constitutional cases decided at all, and 54 percent of the docket involved
admiralty, common-law, and diversity matters. As late as 1875, such cases con-
sumed 45 percent of the docket; constitutional cases amounted to but 6 percent
of the total. The Court of the nineteenth century was still largely a tribunal for the
final settlement of disputes between individual parties. Its role as policymaker was
decidedly secondary.
Though secondary, policymaking was hardly unimportant. Congress recog-
nized as much in a series of statutes that altered the number of justices. Between
1789 and 1869, Congress changed the number of justices from six to five, five to six,
six to seven, seven to nine, nine to ten, ten to seven, and seven to nine (the num-
ber authorized today)—each time partly with an eye toward influencing the Court’s
constitutional decisions.
THE MODERN COURT. The federal judiciary underwent important structural
changes beginning in the late nineteenth century. By the 1880s, it had a case
backlog of several years. A cartoon of the day depicted the justices wading about
their courtroom in a sea of briefs and other documents, pleading for relief, but a
docket in arrears was not simply the product of an expanding population. Con-
gress had gradually enlarged the jurisdiction of the federal courts, meaning that a
greater variety of questions confronted the justices. Through its cases, the Court
could hardly escape embroiling itself in virtually every political movement of the
day. Swollen dockets prompted Congress to act. First, in 1891 Congress authorized
intermediate appellate courts called circuit courts of appeals. For the first time, the
federal judiciary had appellate tribunals below the Supreme Court. For most cases,
the old circuit courts had not been appellate tribunals; a case began in either the
district or circuit court depending on the subject matter. The old circuit courts were
soon merged into the district courts. Circuit riding by the justices, already reduced
substantially in the latter half of the nineteenth century, came to an end (ironically
just as interstate rail transportation had become faster, more reliable, and more
comfortable).
Second, the 1891 statute introduced some certiorari, or discretionary, jurisdic-
tion. This meant that there were fewer categories of cases the justices were legally
obliged to hear and that the new courts of appeals became the courts of last resort
for many cases.
Third, as a result of intense lobbying by Chief Justice William Howard Taft
(the only president to have become chief justice), Congress in 1925 passed the
Judges Bill, which expanded discretionary jurisdiction even further. Now, the Court
was in control of most of its docket, not only in terms of the number of cases it
would decide each year but also, for the most part, of the issues it would confront.
6 Introduction
Taft’s political talents left another institutional legacy: the Supreme Court Building.
With construction finished in 1935, five years after Taft’s death, the justices finally
had a home of their own.
Today, in contrast to the docket in the nineteenth century, public law con-
sumes the Court’s time. Roughly half of the Court’s business now consists of con-
stitutional cases, with statutory interpretation accounting for almost all of the rest.
Moving beyond its dispute-resolution role, the Court has become mainly a maker of
public policy for uniform application across the nation.
APPOINTMENT POLITICS, 1968–1984
The Constitution entrusts the selection of Supreme Court justices, as well as judges
of the lower federal courts, to both the president and the Senate. The choice of the
former requires the consent of the latter. Senatorial approval is usually forthcoming,
but not always. As of April 2017, 113 individuals have served on the Court.4 Of the
158 nominations presidents have submitted to the Senate, 36 have failed to pass,
all but eight in the nineteenth century. Several confirmed persons have declined to
sit. By contrast, the Senate has blocked only nine nominations to the Cabinet since
1789. In exercising their constitutional obligation to give “advice and consent,” sen-
ators ordinarily employ greater scrutiny and more independence with the review of
justices than with heads of executive departments. Enhanced attention to the former
is explained by the Court’s place in the political system, life tenure for justices, and
the fact that the Court, unlike the Cabinet, is not part of the executive branch.
While most senatorial scrutiny today occurs during public hearings before the
Judiciary Committee at which the nominee testifies, for most of American history,
the practice was otherwise. As a standing committee of the Senate, the Judiciary
Committee dates only from 1816, with nominations prior to that date being dealt
with by the full Senate alone. Between 1816 and 1867 some two-thirds of the nom-
inations were referred to the Judiciary Committee, with nearly all of them being
processed in that way since 1868.
The modern practice began to take shape with President Wilson’s nomination
of Louis Brandeis in 1916 when the committee first held an open hearing with out-
side witnesses testifying, although the nominee himself was not present. Supreme
Court nominees did not appear before the committee to answer questions until
1925, when President Coolidge’s nomination of Attorney General Harlan F. Stone
ran into difficulty. Even here, however, Stone was present only to respond to spe-
cific allegations growing out of his work as attorney general. The second nominee
to testify was Felix Frankfurter in 1939, who agreed to appear only when supporters
informed him that he would probably be rejected if he did not. Indeed, Frankfurter
was the first to take a variety of questions in a transcribed public hearing. Still, such
appearances did not become routine until after 1954. Ever since, all nominees have
been expected to appear, although concerns persist over the propriety of questions
that senators ask and what obligation the nominee has to answer them. Moreover,
hearings since 1965 have usually been both exhaustive and, for the prospective jus-
tice, often exhausting. Gone forever, apparently, are the days of the cursory Senate
probing that Kennedy nominee Byron White experienced in 1962, when public
hearings lasted a scant one hour and 35 minutes.
“The good that Presidents do is often interred with their Administrations,” The
Nation editorialized in 1939. “It is their choice of Supreme Court Justices that lives
after them.” Although the separate institutions mandated by the Constitution make
Introduction 7
possible the Court’s considerable independence from outside political pressure,

three factors thrust the Court into the partisan life of the nation: the role of interpre-
tation the Constitution allows, the significance of the decisions the justices render,
and the method of judicial selection the Constitution imposes. Little wonder the
appointment of justices is of paramount concern to presidents, senators, and citizens
alike, as events since 1968 illustrate.
FROM WARREN TO BURGER. On June 26, 1968, President Lyndon Johnson
announced Chief Justice Earl Warren’s intention to resign. Appointment of a chief
justice is a rare occurrence. There have been 45 presidents, counting Grover Cleve-
land’s separated presidencies twice, but only 17 chief justices. During the 34 years
John Marshall sat in the Court’s center chair, there were six presidents. The contrast
is significant substantively as well as statistically, a fact that prompted President
John Quincy Adams to rate the office of chief justice as “more important than that
of President.” Chief justice since 1953, Warren’s tenure had been one of the most
active and remarkable in American history. By one count, in the approximately 150
years before Warren’s appointment, the Court had overruled 88 of its precedents. In
Warren’s 16 years it added another 45 to the list. Hardly an aspect of life had gone
untouched by landmark decisions on race discrimination, legislative apportionment,
and the Bill of Rights. The Warren Court initiated a revolution that is measured by
President Dwight Eisenhower’s purported latter-day lament over Warren’s appoint-
ment: “The biggest damn fool mistake I ever made.”
On June 27, President Johnson nominated Associate Justice Abe Fortas, a close
friend, to succeed the controversial chief. Accusing President Johnson of “crony-
ism,” opposition formed immediately. Fortas was charged with various impropri-
eties, including participation in White House strategy conferences on the Vietnam
War and acceptance of high lecture fees raised by wealthy business executives who
happened to be clients of Fortas’s former law partner, Paul Porter. Some opposing
senators that included both Democrats and Republicans insisted that “the appoint-
ment should be left to the next President, who will be elected in November.” After
four days of deliberation, the Senate voted 45–43 on October 1 to cut off debate,
well shy of the margin necessary to end the anti-Fortas filibuster. Two days later,
the ill-fated justice withdrew his name. For the first time, nomination of a Supreme
Court justice had been blocked by a Senate filibuster.
It remains unclear why Johnson refused to submit another name to the Senate.
The lame-duck president left this high-level appointment to President Richard M.
Nixon, whose 1968 campaign for the White House had been in part a campaign
against the Warren Court. President Nixon’s first step toward fulfilling his 1968 cam-
paign promise to strengthen the “peace forces as against the criminal forces of the
country” was the selection of Warren Earl Burger, 61, chief judge of the U.S. Court
of Appeals for the District of Columbia Circuit. Burger’s confirmation came 18 days
later on June 9, 1969, by a vote of 74–3.
FORTAS RESIGNS. In the spring of 1969, Life magazine revealed that Justice Fortas
had received a yearly $20,000 retainer from the Family Foundation of Louis Wolfson,
then serving a prison term for selling unregistered stock. Once again the judicial fat
was in the political fire. Fortas’s resignation on May 16, 1969, the first by a justice
because of public criticism, opened the way for Nixon’s nomination of Clement F.
Haynsworth, Jr., chief judge of the Court of Appeals for the Fourth Circuit. Because
Haynsworth had taken a restrictive view of school desegregation and had been
insensitive to proprieties in matters involving finance and conflict of interest, the
Senate, still in Democratic hands, in a surprise vote rejected the new president’s
nominee 55–45.
8 Introduction
Rejection of Haynsworth strengthened Nixon’s determination to “pack” the

Court with what he called “strict constructionists.” His next nominee, G. Harrold
Carswell, had served seven years as a federal district judge in Florida and six months
on the Court of Appeals for the Fifth Circuit. In 1948, he had said, “I yield to no
man as a fellow candidate [he was then running for political office] or as a fellow
citizen in the firm, vigorous belief in the principles of White Supremacy, and I shall
always be so governed.” Quite apart from Judge Carswell’s avowed racism (which
he now disavowed), critics charged that President Nixon’s nominee was mediocre.
Accepting the criticism, Nebraska senator Roman Hruska tried to convert it into an
asset: “Even if he is mediocre, there are a lot of mediocre judges and people and
lawyers. They are entitled to a little representation, aren’t they, and a little chance?
We can’t have all Brandeises, Cardozos and Frankfurters and stuff like that there.”
Carswell was rejected 51–45. Not since the second presidency of Grover Cleve-
land in 1893 and 1894 had the Senate refused to accept two nominees for the same
Supreme Court vacancy. Nixon’s third choice was Chief Justice Burger’s longtime
Minnesota friend, Harry A. Blackmun, age 61, of the Court of Appeals for the Eighth
Circuit. Blackmun aroused little opposition and was promptly confirmed 94–0 and
sworn in on June 9, 1970.
POWELL, REHNQUIST, AND STEVENS
In the fall of 1970, President Nixon was still determined to appoint a southerner
to the Supreme Court. The most likely spot to be vacated was that occupied by
84-year-old Justice Hugo Black. Asked for his reaction, Black replied, “I think it
would be nice to have another Southerner up here.” The Alabaman, appointed in
1937, had moved into third place in length of service. The longevity goal was in
sight, but fate defeated its realization. In September 1971, Justices Black and John
Harlan, both ailing, resigned within days of each other. Black fell eight months shy
of Justice Stephen J. Field’s record of 34 1/2 years.
Nixon now had an opportunity no president had experienced since 1940 that
of simultaneously filling two Supreme Court vacancies. His choices were Lewis F.
Powell, Jr., 64, a distinguished Richmond lawyer, and William H. Rehnquist, 47, law
clerk, 1952–1953, to Justice Robert H. Jackson and since 1969 assistant attorney gen-
eral in charge of the Justice Department’s Office of Legal Counsel.
Powell, arousing little or no objection, was confirmed 89–1 on December 6.
Rehnquist ran into stormy waters. But ultimately received Senate approval on
December 10, 1971, 68–26. Powell was sworn in on January 6, 1972, and Rehnquist
on January 7.
On New Year’s Eve 1974, Justice William O. Douglas suffered a stroke.
Although seriously disabled, Douglas was reluctant to retire. “Even if I’m only half
alive,” he remarked, “I can still cast a liberal vote.” But some of his colleagues ques-
tioned whether he should be casting any votes at all. “I should like to register my
protest,” Justice Byron White wrote Chief Justice Burger on October 20, 1975 (with
copies to the other justices), “against the decision of the Court not to assign the
writing of any opinions to Mr. Justice Douglas. . . . [T]here are one or more Justices
who are doubtful about the competence of Mr. Justice Douglas that they would
not join any opinion purportedly authored by him. At the very least, they would
not hand down any judgment arrived at by a 5–4 vote where Mr. Justice Douglas
is in the majority. . . . That decision, made in the absence of Mr. Justice Douglas,
was supported by seven Justices. It is clear that the ground for the action was the
Introduction 9
assumed incompetence of the justice.” White then reminded the “Brethren” (as the
justices used to refer to themselves) that “nowhere” does the Constitution provide
“that a Justice’s colleagues may deprive him of his office by refusing to permit him
to function as a Justice. . . . If the Court is convinced that Justice Douglas should
not continue to function as a Justice, the Court should say so publicly and invite
Congress to take appropriate action.”
Raised again was the thorny question of how to remove an incapacitated
Supreme Court justice. The Constitution supplies no answer, but history does. On
more than one occasion, the power of persuasion exerted on a faltering justice by
colleagues has proved effective. In 1869, Justice Field convinced Justice Grier that he
was too ill to continue. Later, according to one account, when Justice Field became
incapacitated, the first Justice Harlan asked his colleague whether he remembered
urging Grier to retire. “Yes,” Field snapped, “and a dirtier day’s work I never did
in my life.” Ignoring or eluding pressure from whatever source, Douglas reached
his own decision to leave the Court on November 12, almost a year after he was
stricken. He had served 36 years, surpassing the record long held by Justice Field.
For Douglas’s seat President Ford nominated John Paul Stevens, a 55-year-old
appeals court judge from the Seventh Circuit and a former clerk to Justice Wiley
Rutledge. The Senate quickly confirmed 98–0, and on December 19, 1975, Stevens
was sworn in.
THE FIRST WOMAN JUSTICE. The judiciary figured prominently in the presidential
campaign of 1980. Five years had passed without a Supreme Court vacancy on a
bench where more than half the justices were above 70 years of age. Moreover,
the Court only seven years before had injected itself into the most divisive of con-
temporary moral issues by declaring abortion to be a constitutional right. Three
Nixon appointees had voted with the majority, and one of them—Blackmun—had
written the majority opinion. This case alone was reminder enough that Republican
presidents Eisenhower, Nixon, and Ford had not been notably adept in picking
nominees who accorded with their political views. Warren, Brennan, Blackmun,
and Stevens had all proved to be “surprises” in various ways, lending credence to
President Truman’s lament: “Packing the Supreme Court simply can’t be done. I’ve
tried and it won’t work.” This time, Republicans wanted to try harder.
The Republican platform therefore called for judges “who respect traditional
family values and the sanctity of innocent human life.” The second part was code
for opposition to abortion. Denounced by the National Organization for Women for
“medieval stances on women’s issues,” Ronald Reagan confounded the campaign
by promising to name a woman to fill one of “the first Supreme Court vacancies in
my administration.”
As president, Reagan soon had his chance. Potter Stewart, appointed by
President Eisenhower in 1958, announced his retirement on June 18, 1981. Rea-
gan’s choice for a successor was Sandra Day O’Connor, 51, of the Arizona Court of
Appeals. A law student with Justice Rehnquist at Stanford University (he finished
first, she third, in the class of 1952), not only was O’Connor to be the first woman
to sit on the High Court, she was the first since Brennan to have had experience on
a state bench. Moreover, she was the first since Justice Harold Burton, Stewart’s pre-
decessor, to have served as a state legislator. Criticized by some for injecting gender
into justice, Reagan’s fulfillment of a campaign pledge placed him squarely in an
established tradition in which other presidents considered region, religion, and race
in making appointments to the Court. Despite concerns of right-to-life groups that
she was “unsound” on abortion, the Senate, under Republican control for the first
time since 1955, confirmed her 99–0 on September 21.
10 Introduction
APPOINTMENT POLITICS, 1984–1992
On June 17, 1986, President Reagan announced Chief Justice Burger’s retirement
and his intention to nominate Rehnquist as chief justice. Rehnquist would become
only the third chief to have been selected from the Court itself.
At age 78, Burger had served longer than any other chief justice nominated in
the twentieth century. Although Nixon named Burger to the Court in 1969 to fulfill
a campaign pledge against judicial activism, the Court during Burger’s time did not
overturn outright a single major decision of the activist Warren Court (1953–1969).
The persistence of the Warren Court’s jurisprudence was all the more remarkable
when it is remembered that by 1986, only three members of the Warren Court were
still serving, and of the three only two (Justices Brennan and Marshall) had been
closely identified with the Warren Court’s major accomplishments. Although some
of the Warren Court’s landmark rulings on criminal procedure were restricted—most
notably the exclusionary rule (see Chapter Ten)—the Burger Court practiced its own
kind of judicial activism, especially with respect to racial and sexual equality, abor-
tion, and other privacy issues (see Chapters Thirteen and Fourteen). With the possi-
ble exception of Taft, Burger was the most active chief justice outside the Supreme
Court. He treated his office like a pulpit from which to campaign energetically for
changes in legal education, professional standards for bench and bar, criminal sanc-
tions, prisons, and the administration of justice.
Also on June 17, 1986, Reagan nominated Antonin Scalia, 50, of the Court
of Appeals for the District of Columbia Circuit as associate justice. Scalia would
become the first Italian American to serve on the nation’s highest court. Formerly a
law school professor and an assistant attorney general in the Department of Justice,
he, like Rehnquist, was widely regarded as a politically conservative legal thinker.
WHOSE SUPREME COURT IS IT? From the outset, Rehnquist’s nomination encoun-
tered intense opposition, a “Rehnquisition,” as Senator Orrin Hatch called it, even
though Republicans still controlled the Senate. If the president took a nominee’s
views into account, should not the Senate do the same? Preferring to forget their
party’s opposition to Abe Fortas in 1968, Republican leaders wanted to limit the
Senate to a consideration of character and merit, but some Democrats seemed intent
on ensuring a coordinate role for the Senate. “The framers envisioned a major role
for the Senate in the appointment of judges,” argued Senator Edward Kennedy. “It is
historical nonsense to suggest that all the Senate has to do is to check the nominee’s
I.Q., be sure he has a law degree and no arrests, and rubber stamp the President’s
choice.” If Rehnquist’s vision of the Constitution was properly the Senate’s concern,
how much should it matter? Neither the Constitution nor Senate tradition offered a
conclusive answer.
Hearings by the Judiciary Committee on the Rehnquist nomination consumed
four days, and Senate floor debate five. Confirmation, 65–33, came on September 17.
Not since 1836, when the Senate confirmed Roger Taney, had a nominee for chief
justice been approved by a ratio of less than 2–1.
Perhaps because the Senate’s scrutiny of Rehnquist was so intense, Scalia’s
nomination generated only mild turbulence. The Judiciary Committee’s hearings on
Judge Scalia lasted only two days. Floor debate did not exceed five minutes. Follow-
ing the vote on Rehnquist, the Senate confirmed Scalia, 98–0.
THE BORK DEBACLE. At the end of Rehnquist’s first term as chief, Justice Lewis
Powell announced his retirement. For several years, Powell had held a pivotal seat
on the Court, especially in abortion, privacy, church-state, and affirmative action
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DANCE ON STILTS AT THE GIRLS’ UNYAGO, NIUCHI
Newala, too, suffers from the distance of its water-supply—at least

the Newala of to-day does; there was once another Newala in a lovely
valley at the foot of the plateau. I visited it and found scarcely a trace
of houses, only a Christian cemetery, with the graves of several
missionaries and their converts, remaining as a monument of its
former glories. But the surroundings are wonderfully beautiful. A
thick grove of splendid mango-trees closes in the weather-worn
crosses and headstones; behind them, combining the useful and the
agreeable, is a whole plantation of lemon-trees covered with ripe
fruit; not the small African kind, but a much larger and also juicier
imported variety, which drops into the hands of the passing traveller,
without calling for any exertion on his part. Old Newala is now under
the jurisdiction of the native pastor, Daudi, at Chingulungulu, who,
as I am on very friendly terms with him, allows me, as a matter of
course, the use of this lemon-grove during my stay at Newala.
FEET MUTILATED BY THE RAVAGES OF THE “JIGGER”
(Sarcopsylla penetrans)
The water-supply of New Newala is in the bottom of the valley,

some 1,600 feet lower down. The way is not only long and fatiguing,
but the water, when we get it, is thoroughly bad. We are suffering not
only from this, but from the fact that the arrangements at Newala are
nothing short of luxurious. We have a separate kitchen—a hut built
against the boma palisade on the right of the baraza, the interior of
which is not visible from our usual position. Our two cooks were not
long in finding this out, and they consequently do—or rather neglect
to do—what they please. In any case they do not seem to be very
particular about the boiling of our drinking-water—at least I can
attribute to no other cause certain attacks of a dysenteric nature,
from which both Knudsen and I have suffered for some time. If a
man like Omari has to be left unwatched for a moment, he is capable
of anything. Besides this complaint, we are inconvenienced by the
state of our nails, which have become as hard as glass, and crack on
the slightest provocation, and I have the additional infliction of
pimples all over me. As if all this were not enough, we have also, for
the last week been waging war against the jigger, who has found his
Eldorado in the hot sand of the Makonde plateau. Our men are seen
all day long—whenever their chronic colds and the dysentery likewise
raging among them permit—occupied in removing this scourge of
Africa from their feet and trying to prevent the disastrous
consequences of its presence. It is quite common to see natives of
this place with one or two toes missing; many have lost all their toes,
or even the whole front part of the foot, so that a well-formed leg
ends in a shapeless stump. These ravages are caused by the female of
Sarcopsylla penetrans, which bores its way under the skin and there
develops an egg-sac the size of a pea. In all books on the subject, it is
stated that one’s attention is called to the presence of this parasite by
an intolerable itching. This agrees very well with my experience, so
far as the softer parts of the sole, the spaces between and under the
toes, and the side of the foot are concerned, but if the creature
penetrates through the harder parts of the heel or ball of the foot, it
may escape even the most careful search till it has reached maturity.
Then there is no time to be lost, if the horrible ulceration, of which
we see cases by the dozen every day, is to be prevented. It is much
easier, by the way, to discover the insect on the white skin of a
European than on that of a native, on which the dark speck scarcely
shows. The four or five jiggers which, in spite of the fact that I
constantly wore high laced boots, chose my feet to settle in, were
taken out for me by the all-accomplished Knudsen, after which I
thought it advisable to wash out the cavities with corrosive
sublimate. The natives have a different sort of disinfectant—they fill
the hole with scraped roots. In a tiny Makua village on the slope of
the plateau south of Newala, we saw an old woman who had filled all
the spaces under her toe-nails with powdered roots by way of
prophylactic treatment. What will be the result, if any, who can say?
The rest of the many trifling ills which trouble our existence are
really more comic than serious. In the absence of anything else to
smoke, Knudsen and I at last opened a box of cigars procured from
the Indian store-keeper at Lindi, and tried them, with the most
distressing results. Whether they contain opium or some other
narcotic, neither of us can say, but after the tenth puff we were both
“off,” three-quarters stupefied and unspeakably wretched. Slowly we
recovered—and what happened next? Half-an-hour later we were
once more smoking these poisonous concoctions—so insatiable is the
craving for tobacco in the tropics.
Even my present attacks of fever scarcely deserve to be taken
seriously. I have had no less than three here at Newala, all of which
have run their course in an incredibly short time. In the early
afternoon, I am busy with my old natives, asking questions and
making notes. The strong midday coffee has stimulated my spirits to
an extraordinary degree, the brain is active and vigorous, and work
progresses rapidly, while a pleasant warmth pervades the whole
body. Suddenly this gives place to a violent chill, forcing me to put on
my overcoat, though it is only half-past three and the afternoon sun
is at its hottest. Now the brain no longer works with such acuteness
and logical precision; more especially does it fail me in trying to
establish the syntax of the difficult Makua language on which I have
ventured, as if I had not enough to do without it. Under the
circumstances it seems advisable to take my temperature, and I do
so, to save trouble, without leaving my seat, and while going on with
my work. On examination, I find it to be 101·48°. My tutors are
abruptly dismissed and my bed set up in the baraza; a few minutes
later I am in it and treating myself internally with hot water and
lemon-juice.
Three hours later, the thermometer marks nearly 104°, and I make
them carry me back into the tent, bed and all, as I am now perspiring
heavily, and exposure to the cold wind just beginning to blow might
mean a fatal chill. I lie still for a little while, and then find, to my
great relief, that the temperature is not rising, but rather falling. This
is about 7.30 p.m. At 8 p.m. I find, to my unbounded astonishment,
that it has fallen below 98·6°, and I feel perfectly well. I read for an
hour or two, and could very well enjoy a smoke, if I had the
wherewithal—Indian cigars being out of the question.
Having no medical training, I am at a loss to account for this state
of things. It is impossible that these transitory attacks of high fever
should be malarial; it seems more probable that they are due to a
kind of sunstroke. On consulting my note-book, I become more and
more inclined to think this is the case, for these attacks regularly
follow extreme fatigue and long exposure to strong sunshine. They at
least have the advantage of being only short interruptions to my
work, as on the following morning I am always quite fresh and fit.
My treasure of a cook is suffering from an enormous hydrocele which
makes it difficult for him to get up, and Moritz is obliged to keep in
the dark on account of his inflamed eyes. Knudsen’s cook, a raw boy
from somewhere in the bush, knows still less of cooking than Omari;
consequently Nils Knudsen himself has been promoted to the vacant
post. Finding that we had come to the end of our supplies, he began
by sending to Chingulungulu for the four sucking-pigs which we had
bought from Matola and temporarily left in his charge; and when
they came up, neatly packed in a large crate, he callously slaughtered
the biggest of them. The first joint we were thoughtless enough to
entrust for roasting to Knudsen’s mshenzi cook, and it was
consequently uneatable; but we made the rest of the animal into a
jelly which we ate with great relish after weeks of underfeeding,
consuming incredible helpings of it at both midday and evening
meals. The only drawback is a certain want of variety in the tinned
vegetables. Dr. Jäger, to whom the Geographical Commission
entrusted the provisioning of the expeditions—mine as well as his
own—because he had more time on his hands than the rest of us,
seems to have laid in a huge stock of Teltow turnips,[46] an article of
food which is all very well for occasional use, but which quickly palls
when set before one every day; and we seem to have no other tins
left. There is no help for it—we must put up with the turnips; but I
am certain that, once I am home again, I shall not touch them for ten
years to come.
Amid all these minor evils, which, after all, go to make up the
genuine flavour of Africa, there is at least one cheering touch:
Knudsen has, with the dexterity of a skilled mechanic, repaired my 9
× 12 cm. camera, at least so far that I can use it with a little care.
How, in the absence of finger-nails, he was able to accomplish such a
ticklish piece of work, having no tool but a clumsy screw-driver for
taking to pieces and putting together again the complicated
mechanism of the instantaneous shutter, is still a mystery to me; but
he did it successfully. The loss of his finger-nails shows him in a light
contrasting curiously enough with the intelligence evinced by the
above operation; though, after all, it is scarcely surprising after his
ten years’ residence in the bush. One day, at Lindi, he had occasion
to wash a dog, which must have been in need of very thorough
cleansing, for the bottle handed to our friend for the purpose had an
extremely strong smell. Having performed his task in the most
conscientious manner, he perceived with some surprise that the dog
did not appear much the better for it, and was further surprised by
finding his own nails ulcerating away in the course of the next few
days. “How was I to know that carbolic acid has to be diluted?” he
mutters indignantly, from time to time, with a troubled gaze at his
mutilated finger-tips.
Since we came to Newala we have been making excursions in all
directions through the surrounding country, in accordance with old
habit, and also because the akida Sefu did not get together the tribal
elders from whom I wanted information so speedily as he had
promised. There is, however, no harm done, as, even if seen only
from the outside, the country and people are interesting enough.
The Makonde plateau is like a large rectangular table rounded off
at the corners. Measured from the Indian Ocean to Newala, it is
about seventy-five miles long, and between the Rovuma and the
Lukuledi it averages fifty miles in breadth, so that its superficial area
is about two-thirds of that of the kingdom of Saxony. The surface,
however, is not level, but uniformly inclined from its south-western
edge to the ocean. From the upper edge, on which Newala lies, the
eye ranges for many miles east and north-east, without encountering
any obstacle, over the Makonde bush. It is a green sea, from which
here and there thick clouds of smoke rise, to show that it, too, is
inhabited by men who carry on their tillage like so many other
primitive peoples, by cutting down and burning the bush, and
manuring with the ashes. Even in the radiant light of a tropical day
such a fire is a grand sight.
Much less effective is the impression produced just now by the
great western plain as seen from the edge of the plateau. As often as
time permits, I stroll along this edge, sometimes in one direction,
sometimes in another, in the hope of finding the air clear enough to
let me enjoy the view; but I have always been disappointed.
Wherever one looks, clouds of smoke rise from the burning bush,
and the air is full of smoke and vapour. It is a pity, for under more
favourable circumstances the panorama of the whole country up to
the distant Majeje hills must be truly magnificent. It is of little use
taking photographs now, and an outline sketch gives a very poor idea
of the scenery. In one of these excursions I went out of my way to
make a personal attempt on the Makonde bush. The present edge of
the plateau is the result of a far-reaching process of destruction
through erosion and denudation. The Makonde strata are
everywhere cut into by ravines, which, though short, are hundreds of
yards in depth. In consequence of the loose stratification of these
beds, not only are the walls of these ravines nearly vertical, but their
upper end is closed by an equally steep escarpment, so that the
western edge of the Makonde plateau is hemmed in by a series of
deep, basin-like valleys. In order to get from one side of such a ravine
to the other, I cut my way through the bush with a dozen of my men.
It was a very open part, with more grass than scrub, but even so the
short stretch of less than two hundred yards was very hard work; at
the end of it the men’s calicoes were in rags and they themselves
bleeding from hundreds of scratches, while even our strong khaki
suits had not escaped scatheless.
NATIVE PATH THROUGH THE MAKONDE BUSH, NEAR

MAHUTA
I see increasing reason to believe that the view formed some time
back as to the origin of the Makonde bush is the correct one. I have
no doubt that it is not a natural product, but the result of human
occupation. Those parts of the high country where man—as a very
slight amount of practice enables the eye to perceive at once—has not
yet penetrated with axe and hoe, are still occupied by a splendid
timber forest quite able to sustain a comparison with our mixed
forests in Germany. But wherever man has once built his hut or tilled
his field, this horrible bush springs up. Every phase of this process
may be seen in the course of a couple of hours’ walk along the main
road. From the bush to right or left, one hears the sound of the axe—
not from one spot only, but from several directions at once. A few
steps further on, we can see what is taking place. The brush has been
cut down and piled up in heaps to the height of a yard or more,
between which the trunks of the large trees stand up like the last
pillars of a magnificent ruined building. These, too, present a
melancholy spectacle: the destructive Makonde have ringed them—
cut a broad strip of bark all round to ensure their dying off—and also
piled up pyramids of brush round them. Father and son, mother and
son-in-law, are chopping away perseveringly in the background—too
busy, almost, to look round at the white stranger, who usually excites
so much interest. If you pass by the same place a week later, the piles
of brushwood have disappeared and a thick layer of ashes has taken
the place of the green forest. The large trees stretch their
smouldering trunks and branches in dumb accusation to heaven—if
they have not already fallen and been more or less reduced to ashes,
perhaps only showing as a white stripe on the dark ground.
This work of destruction is carried out by the Makonde alike on the
virgin forest and on the bush which has sprung up on sites already
cultivated and deserted. In the second case they are saved the trouble
of burning the large trees, these being entirely absent in the
secondary bush.
After burning this piece of forest ground and loosening it with the
hoe, the native sows his corn and plants his vegetables. All over the
country, he goes in for bed-culture, which requires, and, in fact,
receives, the most careful attention. Weeds are nowhere tolerated in
the south of German East Africa. The crops may fail on the plains,
where droughts are frequent, but never on the plateau with its
abundant rains and heavy dews. Its fortunate inhabitants even have
the satisfaction of seeing the proud Wayao and Wamakua working
for them as labourers, driven by hunger to serve where they were
accustomed to rule.
But the light, sandy soil is soon exhausted, and would yield no
harvest the second year if cultivated twice running. This fact has
been familiar to the native for ages; consequently he provides in
time, and, while his crop is growing, prepares the next plot with axe
and firebrand. Next year he plants this with his various crops and
lets the first piece lie fallow. For a short time it remains waste and
desolate; then nature steps in to repair the destruction wrought by
man; a thousand new growths spring out of the exhausted soil, and
even the old stumps put forth fresh shoots. Next year the new growth
is up to one’s knees, and in a few years more it is that terrible,
impenetrable bush, which maintains its position till the black
occupier of the land has made the round of all the available sites and
come back to his starting point.
The Makonde are, body and soul, so to speak, one with this bush.
According to my Yao informants, indeed, their name means nothing
else but “bush people.” Their own tradition says that they have been
settled up here for a very long time, but to my surprise they laid great
stress on an original immigration. Their old homes were in the
south-east, near Mikindani and the mouth of the Rovuma, whence
their peaceful forefathers were driven by the continual raids of the
Sakalavas from Madagascar and the warlike Shirazis[47] of the coast,
to take refuge on the almost inaccessible plateau. I have studied
African ethnology for twenty years, but the fact that changes of
population in this apparently quiet and peaceable corner of the earth
could have been occasioned by outside enterprises taking place on
the high seas, was completely new to me. It is, no doubt, however,
correct.
The charming tribal legend of the Makonde—besides informing us
of other interesting matters—explains why they have to live in the
thickest of the bush and a long way from the edge of the plateau,
instead of making their permanent homes beside the purling brooks
and springs of the low country.
“The place where the tribe originated is Mahuta, on the southern
side of the plateau towards the Rovuma, where of old time there was
nothing but thick bush. Out of this bush came a man who never
washed himself or shaved his head, and who ate and drank but little.
He went out and made a human figure from the wood of a tree
growing in the open country, which he took home to his abode in the
bush and there set it upright. In the night this image came to life and
was a woman. The man and woman went down together to the
Rovuma to wash themselves. Here the woman gave birth to a still-
born child. They left that place and passed over the high land into the
valley of the Mbemkuru, where the woman had another child, which
was also born dead. Then they returned to the high bush country of
Mahuta, where the third child was born, which lived and grew up. In
course of time, the couple had many more children, and called
themselves Wamatanda. These were the ancestral stock of the
Makonde, also called Wamakonde,[48] i.e., aborigines. Their
forefather, the man from the bush, gave his children the command to
bury their dead upright, in memory of the mother of their race who
was cut out of wood and awoke to life when standing upright. He also
warned them against settling in the valleys and near large streams,
for sickness and death dwelt there. They were to make it a rule to
have their huts at least an hour’s walk from the nearest watering-
place; then their children would thrive and escape illness.”
The explanation of the name Makonde given by my informants is
somewhat different from that contained in the above legend, which I
extract from a little book (small, but packed with information), by
Pater Adams, entitled Lindi und sein Hinterland. Otherwise, my
results agree exactly with the statements of the legend. Washing?
Hapana—there is no such thing. Why should they do so? As it is, the
supply of water scarcely suffices for cooking and drinking; other
people do not wash, so why should the Makonde distinguish himself
by such needless eccentricity? As for shaving the head, the short,
woolly crop scarcely needs it,[49] so the second ancestral precept is
likewise easy enough to follow. Beyond this, however, there is
nothing ridiculous in the ancestor’s advice. I have obtained from
various local artists a fairly large number of figures carved in wood,
ranging from fifteen to twenty-three inches in height, and
representing women belonging to the great group of the Mavia,
Makonde, and Matambwe tribes. The carving is remarkably well
done and renders the female type with great accuracy, especially the
keloid ornamentation, to be described later on. As to the object and
meaning of their works the sculptors either could or (more probably)
would tell me nothing, and I was forced to content myself with the
scanty information vouchsafed by one man, who said that the figures
were merely intended to represent the nembo—the artificial
deformations of pelele, ear-discs, and keloids. The legend recorded
by Pater Adams places these figures in a new light. They must surely
be more than mere dolls; and we may even venture to assume that
they are—though the majority of present-day Makonde are probably
unaware of the fact—representations of the tribal ancestress.
The references in the legend to the descent from Mahuta to the
Rovuma, and to a journey across the highlands into the Mbekuru
valley, undoubtedly indicate the previous history of the tribe, the
travels of the ancestral pair typifying the migrations of their
descendants. The descent to the neighbouring Rovuma valley, with
its extraordinary fertility and great abundance of game, is intelligible
at a glance—but the crossing of the Lukuledi depression, the ascent
to the Rondo Plateau and the descent to the Mbemkuru, also lie
within the bounds of probability, for all these districts have exactly
the same character as the extreme south. Now, however, comes a
point of especial interest for our bacteriological age. The primitive
Makonde did not enjoy their lives in the marshy river-valleys.
Disease raged among them, and many died. It was only after they
had returned to their original home near Mahuta, that the health
conditions of these people improved. We are very apt to think of the
African as a stupid person whose ignorance of nature is only equalled
by his fear of it, and who looks on all mishaps as caused by evil
spirits and malignant natural powers. It is much more correct to
assume in this case that the people very early learnt to distinguish
districts infested with malaria from those where it is absent.
This knowledge is crystallized in the
ancestral warning against settling in the
valleys and near the great waters, the
dwelling-places of disease and death. At the
same time, for security against the hostile
Mavia south of the Rovuma, it was enacted
that every settlement must be not less than a
certain distance from the southern edge of the
plateau. Such in fact is their mode of life at the
present day. It is not such a bad one, and
certainly they are both safer and more
comfortable than the Makua, the recent
intruders from the south, who have made USUAL METHOD OF
good their footing on the western edge of the CLOSING HUT-DOOR
plateau, extending over a fairly wide belt of
country. Neither Makua nor Makonde show in their dwellings
anything of the size and comeliness of the Yao houses in the plain,
especially at Masasi, Chingulungulu and Zuza’s. Jumbe Chauro, a
Makonde hamlet not far from Newala, on the road to Mahuta, is the
most important settlement of the tribe I have yet seen, and has fairly
spacious huts. But how slovenly is their construction compared with
the palatial residences of the elephant-hunters living in the plain.
The roofs are still more untidy than in the general run of huts during
the dry season, the walls show here and there the scanty beginnings
or the lamentable remains of the mud plastering, and the interior is a
veritable dog-kennel; dirt, dust and disorder everywhere. A few huts
only show any attempt at division into rooms, and this consists
merely of very roughly-made bamboo partitions. In one point alone
have I noticed any indication of progress—in the method of fastening
the door. Houses all over the south are secured in a simple but
ingenious manner. The door consists of a set of stout pieces of wood
or bamboo, tied with bark-string to two cross-pieces, and moving in
two grooves round one of the door-posts, so as to open inwards. If
the owner wishes to leave home, he takes two logs as thick as a man’s
upper arm and about a yard long. One of these is placed obliquely
against the middle of the door from the inside, so as to form an angle
of from 60° to 75° with the ground. He then places the second piece
horizontally across the first, pressing it downward with all his might.
It is kept in place by two strong posts planted in the ground a few
inches inside the door. This fastening is absolutely safe, but of course
cannot be applied to both doors at once, otherwise how could the
owner leave or enter his house? I have not yet succeeded in finding
out how the back door is fastened.
MAKONDE LOCK AND KEY AT JUMBE CHAURO

This is the general way of closing a house. The Makonde at Jumbe
Chauro, however, have a much more complicated, solid and original
one. Here, too, the door is as already described, except that there is
only one post on the inside, standing by itself about six inches from
one side of the doorway. Opposite this post is a hole in the wall just
large enough to admit a man’s arm. The door is closed inside by a
large wooden bolt passing through a hole in this post and pressing
with its free end against the door. The other end has three holes into
which fit three pegs running in vertical grooves inside the post. The
door is opened with a wooden key about a foot long, somewhat
curved and sloped off at the butt; the other end has three pegs
corresponding to the holes, in the bolt, so that, when it is thrust
through the hole in the wall and inserted into the rectangular
opening in the post, the pegs can be lifted and the bolt drawn out.[50]
MODE OF INSERTING THE KEY
With no small pride first one householder and then a second

showed me on the spot the action of this greatest invention of the
Makonde Highlands. To both with an admiring exclamation of
“Vizuri sana!” (“Very fine!”). I expressed the wish to take back these
marvels with me to Ulaya, to show the Wazungu what clever fellows
the Makonde are. Scarcely five minutes after my return to camp at
Newala, the two men came up sweating under the weight of two
heavy logs which they laid down at my feet, handing over at the same
time the keys of the fallen fortress. Arguing, logically enough, that if
the key was wanted, the lock would be wanted with it, they had taken
their axes and chopped down the posts—as it never occurred to them
to dig them out of the ground and so bring them intact. Thus I have
two badly damaged specimens, and the owners, instead of praise,
come in for a blowing-up.
The Makua huts in the environs of Newala are especially
miserable; their more than slovenly construction reminds one of the
temporary erections of the Makua at Hatia’s, though the people here
have not been concerned in a war. It must therefore be due to
congenital idleness, or else to the absence of a powerful chief. Even
the baraza at Mlipa’s, a short hour’s walk south-east of Newala,
shares in this general neglect. While public buildings in this country
are usually looked after more or less carefully, this is in evident
danger of being blown over by the first strong easterly gale. The only
attractive object in this whole district is the grave of the late chief
Mlipa. I visited it in the morning, while the sun was still trying with
partial success to break through the rolling mists, and the circular
grove of tall euphorbias, which, with a broken pot, is all that marks
the old king’s resting-place, impressed one with a touch of pathos.
Even my very materially-minded carriers seemed to feel something
of the sort, for instead of their usual ribald songs, they chanted
solemnly, as we marched on through the dense green of the Makonde
bush:—
“We shall arrive with the great master; we stand in a row and have
no fear about getting our food and our money from the Serkali (the
Government). We are not afraid; we are going along with the great
master, the lion; we are going down to the coast and back.”
With regard to the characteristic features of the various tribes here
on the western edge of the plateau, I can arrive at no other
conclusion than the one already come to in the plain, viz., that it is
impossible for anyone but a trained anthropologist to assign any
given individual at once to his proper tribe. In fact, I think that even
an anthropological specialist, after the most careful examination,
might find it a difficult task to decide. The whole congeries of peoples
collected in the region bounded on the west by the great Central
African rift, Tanganyika and Nyasa, and on the east by the Indian
Ocean, are closely related to each other—some of their languages are
only distinguished from one another as dialects of the same speech,
and no doubt all the tribes present the same shape of skull and
structure of skeleton. Thus, surely, there can be no very striking
differences in outward appearance.
Even did such exist, I should have no time
to concern myself with them, for day after day,
I have to see or hear, as the case may be—in
any case to grasp and record—an
extraordinary number of ethnographic
phenomena. I am almost disposed to think it
fortunate that some departments of inquiry, at
least, are barred by external circumstances.
Chief among these is the subject of iron-
working. We are apt to think of Africa as a
country where iron ore is everywhere, so to
speak, to be picked up by the roadside, and
where it would be quite surprising if the
inhabitants had not learnt to smelt the
material ready to their hand. In fact, the
knowledge of this art ranges all over the
continent, from the Kabyles in the north to the
Kafirs in the south. Here between the Rovuma
and the Lukuledi the conditions are not so
favourable. According to the statements of the
Makonde, neither ironstone nor any other
form of iron ore is known to them. They have
not therefore advanced to the art of smelting
the metal, but have hitherto bought all their
THE ANCESTRESS OF
THE MAKONDE
iron implements from neighbouring tribes.
Even in the plain the inhabitants are not much
better off. Only one man now living is said to
understand the art of smelting iron. This old fundi lives close to
Huwe, that isolated, steep-sided block of granite which rises out of
the green solitude between Masasi and Chingulungulu, and whose
jagged and splintered top meets the traveller’s eye everywhere. While
still at Masasi I wished to see this man at work, but was told that,
frightened by the rising, he had retired across the Rovuma, though
he would soon return. All subsequent inquiries as to whether the
fundi had come back met with the genuine African answer, “Bado”
(“Not yet”).
BRAZIER
Some consolation was afforded me by a brassfounder, whom I

came across in the bush near Akundonde’s. This man is the favourite
of women, and therefore no doubt of the gods; he welds the glittering
brass rods purchased at the coast into those massive, heavy rings
which, on the wrists and ankles of the local fair ones, continually give
me fresh food for admiration. Like every decent master-craftsman he
had all his tools with him, consisting of a pair of bellows, three
crucibles and a hammer—nothing more, apparently. He was quite
willing to show his skill, and in a twinkling had fixed his bellows on
the ground. They are simply two goat-skins, taken off whole, the four
legs being closed by knots, while the upper opening, intended to
admit the air, is kept stretched by two pieces of wood. At the lower
end of the skin a smaller opening is left into which a wooden tube is
stuck. The fundi has quickly borrowed a heap of wood-embers from
the nearest hut; he then fixes the free ends of the two tubes into an
earthen pipe, and clamps them to the ground by means of a bent
piece of wood. Now he fills one of his small clay crucibles, the dross
on which shows that they have been long in use, with the yellow
material, places it in the midst of the embers, which, at present are
only faintly glimmering, and begins his work. In quick alternation
the smith’s two hands move up and down with the open ends of the
bellows; as he raises his hand he holds the slit wide open, so as to let
the air enter the skin bag unhindered. In pressing it down he closes
the bag, and the air puffs through the bamboo tube and clay pipe into
the fire, which quickly burns up. The smith, however, does not keep
on with this work, but beckons to another man, who relieves him at
the bellows, while he takes some more tools out of a large skin pouch
carried on his back. I look on in wonder as, with a smooth round
stick about the thickness of a finger, he bores a few vertical holes into
the clean sand of the soil. This should not be difficult, yet the man
seems to be taking great pains over it. Then he fastens down to the
ground, with a couple of wooden clamps, a neat little trough made by
splitting a joint of bamboo in half, so that the ends are closed by the
two knots. At last the yellow metal has attained the right consistency,
and the fundi lifts the crucible from the fire by means of two sticks
split at the end to serve as tongs. A short swift turn to the left—a
tilting of the crucible—and the molten brass, hissing and giving forth
clouds of smoke, flows first into the bamboo mould and then into the
holes in the ground.
The technique of this backwoods craftsman may not be very far
advanced, but it cannot be denied that he knows how to obtain an
adequate result by the simplest means. The ladies of highest rank in
this country—that is to say, those who can afford it, wear two kinds
of these massive brass rings, one cylindrical, the other semicircular
in section. The latter are cast in the most ingenious way in the
bamboo mould, the former in the circular hole in the sand. It is quite
a simple matter for the fundi to fit these bars to the limbs of his fair
customers; with a few light strokes of his hammer he bends the
pliable brass round arm or ankle without further inconvenience to
the wearer.
SHAPING THE POT
SMOOTHING WITH MAIZE-COB
CUTTING THE EDGE

FINISHING THE BOTTOM
LAST SMOOTHING BEFORE

BURNING
FIRING THE BRUSH-PILE

LIGHTING THE FARTHER SIDE OF
THE PILE
TURNING THE RED-HOT VESSEL
NYASA WOMAN MAKING POTS AT MASASI

Pottery is an art which must always and everywhere excite the
interest of the student, just because it is so intimately connected with
the development of human culture, and because its relics are one of
the principal factors in the reconstruction of our own condition in
prehistoric times. I shall always remember with pleasure the two or
three afternoons at Masasi when Salim Matola’s mother, a slightly-
built, graceful, pleasant-looking woman, explained to me with
touching patience, by means of concrete illustrations, the ceramic art
of her people. The only implements for this primitive process were a
lump of clay in her left hand, and in the right a calabash containing
the following valuables: the fragment of a maize-cob stripped of all
its grains, a smooth, oval pebble, about the size of a pigeon’s egg, a
few chips of gourd-shell, a bamboo splinter about the length of one’s
hand, a small shell, and a bunch of some herb resembling spinach.
Nothing more. The woman scraped with the
shell a round, shallow hole in the soft, fine
sand of the soil, and, when an active young
girl had filled the calabash with water for her,
she began to knead the clay. As if by magic it
gradually assumed the shape of a rough but
already well-shaped vessel, which only wanted
a little touching up with the instruments
before mentioned. I looked out with the
MAKUA WOMAN closest attention for any indication of the use
MAKING A POT. of the potter’s wheel, in however rudimentary
SHOWS THE a form, but no—hapana (there is none). The
BEGINNINGS OF THE embryo pot stood firmly in its little
POTTER’S WHEEL
depression, and the woman walked round it in
a stooping posture, whether she was removing
small stones or similar foreign bodies with the maize-cob, smoothing
the inner or outer surface with the splinter of bamboo, or later, after
letting it dry for a day, pricking in the ornamentation with a pointed
bit of gourd-shell, or working out the bottom, or cutting the edge
with a sharp bamboo knife, or giving the last touches to the finished
vessel. This occupation of the women is infinitely toilsome, but it is
without doubt an accurate reproduction of the process in use among
our ancestors of the Neolithic and Bronze ages.
There is no doubt that the invention of pottery, an item in human
progress whose importance cannot be over-estimated, is due to
women. Rough, coarse and unfeeling, the men of the horde range
over the countryside. When the united cunning of the hunters has
succeeded in killing the game; not one of them thinks of carrying
home the spoil. A bright fire, kindled by a vigorous wielding of the
drill, is crackling beside them; the animal has been cleaned and cut
up secundum artem, and, after a slight singeing, will soon disappear
under their sharp teeth; no one all this time giving a single thought
to wife or child.
To what shifts, on the other hand, the primitive wife, and still more
the primitive mother, was put! Not even prehistoric stomachs could
endure an unvarying diet of raw food. Something or other suggested
the beneficial effect of hot water on the majority of approved but
indigestible dishes. Perhaps a neighbour had tried holding the hard
roots or tubers over the fire in a calabash filled with water—or maybe
an ostrich-egg-shell, or a hastily improvised vessel of bark. They
became much softer and more palatable than they had previously
been; but, unfortunately, the vessel could not stand the fire and got
charred on the outside. That can be remedied, thought our
ancestress, and plastered a layer of wet clay round a similar vessel.
This is an improvement; the cooking utensil remains uninjured, but
the heat of the fire has shrunk it, so that it is loose in its shell. The
next step is to detach it, so, with a firm grip and a jerk, shell and
kernel are separated, and pottery is invented. Perhaps, however, the
discovery which led to an intelligent use of the burnt-clay shell, was
made in a slightly different way. Ostrich-eggs and calabashes are not
to be found in every part of the world, but everywhere mankind has
arrived at the art of making baskets out of pliant materials, such as
bark, bast, strips of palm-leaf, supple twigs, etc. Our inventor has no
water-tight vessel provided by nature. “Never mind, let us line the
basket with clay.” This answers the purpose, but alas! the basket gets
burnt over the blazing fire, the woman watches the process of
cooking with increasing uneasiness, fearing a leak, but no leak
appears. The food, done to a turn, is eaten with peculiar relish; and
the cooking-vessel is examined, half in curiosity, half in satisfaction
at the result. The plastic clay is now hard as stone, and at the same
time looks exceedingly well, for the neat plaiting of the burnt basket
is traced all over it in a pretty pattern. Thus, simultaneously with
pottery, its ornamentation was invented.
Primitive woman has another claim to respect. It was the man,
roving abroad, who invented the art of producing fire at will, but the
woman, unable to imitate him in this, has been a Vestal from the
earliest times. Nothing gives so much trouble as the keeping alight of
the smouldering brand, and, above all, when all the men are absent
from the camp. Heavy rain-clouds gather, already the first large
drops are falling, the first gusts of the storm rage over the plain. The
little flame, a greater anxiety to the woman than her own children,
flickers unsteadily in the blast. What is to be done? A sudden thought
occurs to her, and in an instant she has constructed a primitive hut
out of strips of bark, to protect the flame against rain and wind.
This, or something very like it, was the way in which the principle
of the house was discovered; and even the most hardened misogynist
cannot fairly refuse a woman the credit of it. The protection of the
hearth-fire from the weather is the germ from which the human
dwelling was evolved. Men had little, if any share, in this forward
step, and that only at a late stage. Even at the present day, the
plastering of the housewall with clay and the manufacture of pottery
are exclusively the women’s business. These are two very significant
survivals. Our European kitchen-garden, too, is originally a woman’s
invention, and the hoe, the primitive instrument of agriculture, is,
characteristically enough, still used in this department. But the
noblest achievement which we owe to the other sex is unquestionably
the art of cookery. Roasting alone—the oldest process—is one for
which men took the hint (a very obvious one) from nature. It must
have been suggested by the scorched carcase of some animal
overtaken by the destructive forest-fires. But boiling—the process of
improving organic substances by the help of water heated to boiling-
point—is a much later discovery. It is so recent that it has not even
yet penetrated to all parts of the world. The Polynesians understand
how to steam food, that is, to cook it, neatly wrapped in leaves, in a
hole in the earth between hot stones, the air being excluded, and
(sometimes) a few drops of water sprinkled on the stones; but they
do not understand boiling.
To come back from this digression, we find that the slender Nyasa
woman has, after once more carefully examining the finished pot,
put it aside in the shade to dry. On the following day she sends me
word by her son, Salim Matola, who is always on hand, that she is
going to do the burning, and, on coming out of my house, I find her
already hard at work. She has spread on the ground a layer of very
dry sticks, about as thick as one’s thumb, has laid the pot (now of a
yellowish-grey colour) on them, and is piling brushwood round it.
My faithful Pesa mbili, the mnyampara, who has been standing by,
most obligingly, with a lighted stick, now hands it to her. Both of
them, blowing steadily, light the pile on the lee side, and, when the
flame begins to catch, on the weather side also. Soon the whole is in a
blaze, but the dry fuel is quickly consumed and the fire dies down, so
that we see the red-hot vessel rising from the ashes. The woman
turns it continually with a long stick, sometimes one way and
sometimes another, so that it may be evenly heated all over. In
twenty minutes she rolls it out of the ash-heap, takes up the bundle
of spinach, which has been lying for two days in a jar of water, and
sprinkles the red-hot clay with it. The places where the drops fall are
marked by black spots on the uniform reddish-brown surface. With a
sigh of relief, and with visible satisfaction, the woman rises to an
erect position; she is standing just in a line between me and the fire,
from which a cloud of smoke is just rising: I press the ball of my
camera, the shutter clicks—the apotheosis is achieved! Like a
priestess, representative of her inventive sex, the graceful woman
stands: at her feet the hearth-fire she has given us beside her the
invention she has devised for us, in the background the home she has
built for us.
At Newala, also, I have had the manufacture of pottery carried on
in my presence. Technically the process is better than that already
described, for here we find the beginnings of the potter’s wheel,
which does not seem to exist in the plains; at least I have seen
nothing of the sort. The artist, a frightfully stupid Makua woman, did
not make a depression in the ground to receive the pot she was about
to shape, but used instead a large potsherd. Otherwise, she went to
work in much the same way as Salim’s mother, except that she saved
herself the trouble of walking round and round her work by squatting
at her ease and letting the pot and potsherd rotate round her; this is
surely the first step towards a machine. But it does not follow that
the pot was improved by the process. It is true that it was beautifully
rounded and presented a very creditable appearance when finished,
but the numerous large and small vessels which I have seen, and, in
part, collected, in the “less advanced” districts, are no less so. We
moderns imagine that instruments of precision are necessary to
produce excellent results. Go to the prehistoric collections of our
museums and look at the pots, urns and bowls of our ancestors in the
dim ages of the past, and you will at once perceive your error.
MAKING LONGITUDINAL CUT IN
BARK
DRAWING THE BARK OFF THE LOG
REMOVING THE OUTER BARK

BEATING THE BARK
WORKING THE BARK-CLOTH AFTER BEATING, TO MAKE IT

SOFT
MANUFACTURE OF BARK-CLOTH AT NEWALA

To-day, nearly the whole population of German East Africa is
clothed in imported calico. This was not always the case; even now in
some parts of the north dressed skins are still the prevailing wear,
and in the north-western districts—east and north of Lake
Tanganyika—lies a zone where bark-cloth has not yet been
superseded. Probably not many generations have passed since such
bark fabrics and kilts of skins were the only clothing even in the
south. Even to-day, large quantities of this bright-red or drab
material are still to be found; but if we wish to see it, we must look in
the granaries and on the drying stages inside the native huts, where
it serves less ambitious uses as wrappings for those seeds and fruits
which require to be packed with special care. The salt produced at
Masasi, too, is packed for transport to a distance in large sheets of
bark-cloth. Wherever I found it in any degree possible, I studied the
process of making this cloth. The native requisitioned for the
purpose arrived, carrying a log between two and three yards long and
as thick as his thigh, and nothing else except a curiously-shaped
mallet and the usual long, sharp and pointed knife which all men and
boys wear in a belt at their backs without a sheath—horribile dictu!
[51]
Silently he squats down before me, and with two rapid cuts has
drawn a couple of circles round the log some two yards apart, and
slits the bark lengthwise between them with the point of his knife.
With evident care, he then scrapes off the outer rind all round the
log, so that in a quarter of an hour the inner red layer of the bark
shows up brightly-coloured between the two untouched ends. With
some trouble and much caution, he now loosens the bark at one end,
and opens the cylinder. He then stands up, takes hold of the free
edge with both hands, and turning it inside out, slowly but steadily
pulls it off in one piece. Now comes the troublesome work of
scraping all superfluous particles of outer bark from the outside of
the long, narrow piece of material, while the inner side is carefully
scrutinised for defective spots. At last it is ready for beating. Having
signalled to a friend, who immediately places a bowl of water beside
him, the artificer damps his sheet of bark all over, seizes his mallet,
lays one end of the stuff on the smoothest spot of the log, and
hammers away slowly but continuously. “Very simple!” I think to
myself. “Why, I could do that, too!”—but I am forced to change my
opinions a little later on; for the beating is quite an art, if the fabric is
not to be beaten to pieces. To prevent the breaking of the fibres, the
stuff is several times folded across, so as to interpose several
thicknesses between the mallet and the block. At last the required
state is reached, and the fundi seizes the sheet, still folded, by both
ends, and wrings it out, or calls an assistant to take one end while he
holds the other. The cloth produced in this way is not nearly so fine
and uniform in texture as the famous Uganda bark-cloth, but it is
quite soft, and, above all, cheap.
Now, too, I examine the mallet. My craftsman has been using the
simpler but better form of this implement, a conical block of some
hard wood, its base—the striking surface—being scored across and
across with more or less deeply-cut grooves, and the handle stuck
into a hole in the middle. The other and earlier form of mallet is
shaped in the same way, but the head is fastened by an ingenious
network of bark strips into the split bamboo serving as a handle. The
observation so often made, that ancient customs persist longest in
connection with religious ceremonies and in the life of children, here
finds confirmation. As we shall soon see, bark-cloth is still worn
during the unyago,[52] having been prepared with special solemn
ceremonies; and many a mother, if she has no other garment handy,
will still put her little one into a kilt of bark-cloth, which, after all,
looks better, besides being more in keeping with its African
surroundings, than the ridiculous bit of print from Ulaya.
MAKUA WOMEN

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American Constitutional Law:

Introductory Essays and Selected

Checks on Judicial Power 52

Missouri v. Holland (1920) 128

III. Regulation Through Spending 302

II. The Bill of Rights and the States 377

II. State Aid to Religious Schools 546

Cleburne v. Cleburne Living Center (1985) 628

T he Supreme Court heard arguments in two cases on Wednesday, January 20,

The partisan tension surrounding Scalia’s replacement must be considered

NEW TO THIS EDITION

A Political Supreme Court

Against the background of the Court’s beginnings in 1790, anyone embarking

CONSTITUTIONAL INTERPRETATION AND POLITICAL CHOICE

interpretation of the Constitution at different times has been a major influence on

Understanding constitutional law today is helped by an awareness of the Court’s

APPOINTMENT POLITICS, 1968–1984

possible the Court’s considerable independence from outside political pressure,

Rejection of Haynsworth strengthened Nixon’s determination to “pack” the

POWELL, REHNQUIST, AND STEVENS

APPOINTMENT POLITICS, 1984–1992

Newala, too, suffers from the distance of its water-supply—at least

The water-supply of New Newala is in the bottom of the valley,

NATIVE PATH THROUGH THE MAKONDE BUSH, NEAR

MAKONDE LOCK AND KEY AT JUMBE CHAURO

MODE OF INSERTING THE KEY

With no small pride first one householder and then a second

Some consolation was afforded me by a brassfounder, whom I

SMOOTHING WITH MAIZE-COB

CUTTING THE EDGE

LAST SMOOTHING BEFORE

FIRING THE BRUSH-PILE

TURNING THE RED-HOT VESSEL

NYASA WOMAN MAKING POTS AT MASASI

DRAWING THE BARK OFF THE LOG

REMOVING THE OUTER BARK

WORKING THE BARK-CLOTH AFTER BEATING, TO MAKE IT

MANUFACTURE OF BARK-CLOTH AT NEWALA

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