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Constitutional
Landmarks
Supreme Court Decisions
on Separation of
Powers, Federalism,
and Economic Rights
Charles M. Lamb · Jacob R. Neiheisel
Constitutional Landmarks
Charles M. Lamb · Jacob R. Neiheisel
Constitutional
Landmarks
Supreme Court Decisions on Separation of Powers,
Federalism, and Economic Rights
Charles M. Lamb Jacob R. Neiheisel
Department of Political Science Department of Political Science
University at Buffalo, State University University at Buffalo, State University
of New York of New York
Buffalo, NY, USA Buffalo, NY, USA
ISBN 978-3-030-55574-0 ISBN 978-3-030-55575-7 (eBook)

https://doi.org/10.1007/978-3-030-55575-7
© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer
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Preface
The American Constitution creates three branches of government, each

of which at times has performed admirably and each of which at other
times has disappointed the nation’s people. This study of American consti-
tutional law examines major highs and lows of judicial, executive, and
legislative branch behavior as seen in the sweep of Supreme Court policy-
making and politics. It begins with an overview of federal judicial power in
Chapter 1, followed by an analysis of federal executive power in Chapter 2
and federal legislative power in Chapter 3. Chapters 1 through 3 there-
fore stress how the Supreme Court has interpreted its own powers as
well as those of the president and Congress over time. The division of
power between the national government and the states is also explored in
Chapter 4, whereas Chapter 5 spotlights Americans’ economic rights and
how the Court has construed them.
This book emphasizes landmark Supreme Court decisions and the
justices who made them. Clearly, though, the notion of a “landmark”
decision is broad and subjective, and some cases covered in the following
pages are obviously more important to American constitutional law and
politics than others. In determining which cases to include, we exam-
ined leading constitutional law textbooks in political science and law to
establish which cases were most often reprinted and discussed in some
detail. We also consulted other sources, such as Biskupic and Witt (1997)
and Epstein et al. (2015), to supplement our initial list of decisions for
inclusion.
v
vi PREFACE
In addition, this book accentuates the importance of the Supreme

Court’s decisions in the larger political context and how the Court’s
decisional trends evolved over time. We assume throughout that judi-
cial attitudes, strategies, and role conceptions are critical to a richer,
more well-rounded understanding of the Court and what the justices say
the Constitution requires. In this sense, we stand on the shoulders of
numerous scholars who have studied the Court, its decisions, and the
justices’ behavior. Nevertheless, the study of constitutional law is distin-
guishable from the study of judicial politics, so by necessity we primarily
focus on the High Court as a legal institution and the justices’ legal
reasoning rather than the equally fascinating nonlegal factors that drive
judicial behavior.
Some readers may find the study of constitutional law to be chal-
lenging, but keeping certain basic ideas in mind should help you to better
understand the theories, doctrines, and cases surveyed in the upcoming
pages. Thus, especially for novices, we would emphasize some elementary
points before you begin this book.
• Although there were fluctuations in the number of justices on

the Court before 1869, since then it has been composed of nine
members—unless a vacancy exists because of illness, retirement,
or death—and the voting division, if any, between the justices is
provided in each case.
• Cases usually come to the Court by means of a writ of certiorari—
an order to a lower federal or state court to send the records in a
case up to the Supreme Court for review—and at least four justices
must agree that a case should be accepted before the Court proceeds
further. This is called the rule of four.
• The justices announce an opinion after a majority agrees on how to
decide a case, and one justice ordinarily writes the final opinion; if
no final opinion is handed down, the most recent lower court deci-
sion is upheld. On rare occasions, instead of a customary majority
opinion, the Court issues a per curiam opinion, which is unsigned
or collectively written, as in Bush v. Gore (2000).
• A justice can write one of three types of opinions in a case: a majority
opinion (which is assigned either by the chief justice, if he or she
votes with the majority, or the senior associate justice who votes with
the majority); a concurring opinion (which agrees with the majority’s
PREFACE vii
basic decision but often for different reasons); or a dissenting opinion

(which disagrees with the majority’s basic decision).
• Increasingly over time justices have chosen to concur in part or
dissent in part from other opinions. The only way to know if a “con-
curring in part, dissenting in part opinion” is primarily a concurrence
or a dissent is by reading the opinion carefully.
• For much of the nation’s history, a system of “dual federalism” was
in place whereby the protections afforded to individuals by the Bill
of Rights were interpreted by the Court as only safeguarding against
encroachments by the national government. With the ratification
of the Fourteenth Amendment to the Constitution, however, the
freedoms articulated in the Bill of Rights began to be incorporated
against the states through the Due Process Clause of the Fourteenth
Amendment. This process of selective incorporation would play out
over time in a piecemeal fashion until nearly all of the provisions of
the first eight amendments to the Constitution would be held by the
Court as applying to the governments of the various states as well as
to the national government.
• Decisions that spark your interest can be found online by searching
a case’s name. Reading selected opinions by a favorite justice or on
a chosen topic provides a far greater understanding of that justice or
subject matter.
• Some areas of constitutional law overlap, so some decisions are
mentioned in more than one chapter. A prime example is that
many Commerce Clause cases explored in Chapter 3’s treatment
of congressional power are also highly relevant to Chapter 4’s
discussion of federalism.
In closing we thank Angie, Kelly, and especially Ada for their patience
and understanding; our editors, Michelle Chen and Rebecca Roberts, for
encouraging our work on the book; Sheldon Goldman, Rachel Hinkle,
Nancy Kassop, and David O’Brien for providing constructive suggestions
and sage advice; Lee Epstein for generously sharing a needed database;
and Josephine Moore for her excellent substantive and editorial assistance.
Without this encouragement and assistance, this project would not have
viii PREFACE
been completed, though naturally we remain solely responsible for any

mistakes that remain.
Buffalo, USA Charles M. Lamb

Jacob R. Neiheisel
Contents
1 The Supreme Court and Judicial Power 1
2 The Presidency and Presidential Power 49
3 Congress and Congressional Power 109
4 Federalism and Federal-State Relations 181
5 Americans’ Economic Rights 223
Constitutional Landmarks 263
Index 275
ix
List of Figures
Fig. 1.1 Ideological direction in judicial power cases, 1791–2018 10

Fig. 1.2 Ideological direction in judicial power cases in the third
constitutional era 12
Fig. 1.3 Ideological direction in judicial power cases
across constitutional eras 22
Fig. 2.1 Presidential win rate by term, 1932–2016 52
Fig. 2.2 Presidential win rate by term in the third constitutional era 53
Fig. 3.1 Number of acts of Congress declared unconstitutional,
1791–2018 124
Fig. 4.1 Ideological direction in federalism cases
across constitutional eras 184
Fig. 4.2 Ideological direction in federalism cases in the third
Fig. 4.3 Number of state laws declared unconstitutional, 1791–2018 195
Fig. 5.1 Ideological direction in economic liberty cases, 1791–2018 224
Fig. 5.2 Ideological direction in economic liberty cases in the third
Fig. 5.3 Ideological direction in cases involving the contract clause,
1791–2018 227
Fig. 5.4 Ideological direction in cases involving the takings clause,
1791–2018 236
xi
List of Tables
Table 1.1 Selected decisions on the Supreme Court and judicial

power 15
Table 1.2 Chief justices of the Supreme Court 20
Table 2.1 Selected decisions on the presidency and presidential
power 61
Table 3.1 Selected decisions on congress and congressional power 126
Table 4.1 Selected decisions on federalism and federal-state relations 197
Table 5.1 Selected decisions on economic rights 228
xiii
CHAPTER 1
The Supreme Court and Judicial Power
The U.S. Constitution, the oldest written constitution, gives each branch
of the federal government certain distinct powers, apportioned through
a system of separation of powers and checks and balances in order to
protect any one branch from abusing its authority. The nation is therefore
said to have three separate governmental branches sharing power. Let’s
take a few examples. Article I assigns all legislative powers to Congress;
accordingly, Congress is responsible for passing all federal statutes and
presenting them to the president for approval or disapproval. The presi-
dent, who is ultimately responsible for enforcing the law, can nevertheless
veto Congress’s proposed laws, but Congress can override a presiden-
tial veto, and the Supreme Court can still rule that the final statute is
unconstitutional. The president is likewise assigned all federal executive
authority under Article II, including that of commander in chief, but
Congress must pass laws appropriating funding for the armed forces and is
specifically delegated the power to declare war. As the ultimate check, the
House of Representatives can impeach the president for treason, bribery,
or other high crimes and misdemeanors, and the Senate can conduct a
trial to remove him (or her) from office. As a final illustration, Article II
stipulates that the president shall appoint all federal judges and numerous
executive branch officials, but those appointments must undergo the
advice and consent of the Senate, and the Supreme Court can rule that
actions by presidential appointees violate the law.
© The Author(s) 2021 1

C. M. Lamb and J. R. Neiheisel, Constitutional Landmarks,
https://doi.org/10.1007/978-3-030-55575-7_1
2 C. M. LAMB AND J. R. NEIHEISEL
This chapter introduces the Supreme Court and its exercise of power,
beginning with five fundamental points. First, the Supreme Court is the
final interpreter of the Constitution—not the president or Congress (but
see Blackstone 2013; Fisher 2019; Murphy 1986).1 Second, many of the
Constitution’s words, phrases, and concepts are ambiguous and unde-
fined, so they frequently permit the justices ample leeway to make major
decisions, sometimes unprecedented in nature, affecting the entire nation
and millions of people. Third, the Constitution, other sources of law, judi-
cial precedents, legal history, social norms, or a lawsuit’s facts frequently
affect how the Supreme Court decides cases. Fourth, though, not only
legal but also political considerations influence whether the Court accepts
a case and how it is decided, including the justices’ ideologies, strategies,
and role conceptions (see, e.g., Epstein and Knight 1998; Gibson 1978;
Segal and Spaeth 2002) as well as the possibility of external factors such as
public opinion and interest groups (see, e.g., Caldeira and Wright 1988;
Giles et al. 2008; Mishler and Sheehan 1993). Fifth, Supreme Court
decisions have legal, political, economic, and social impacts on America
(see, e.g., Canon and Johnson 1999; Rosenberg 2008). As you read the
following pages, the importance of these points will become apparent.
Constitutional Basics
The federal courts are the focus of Article III of the Constitution, where
Section 1 initially declares, “The judicial Power of the United States,
shall be vested in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish.” So the Supreme
Court is the only court that Article III expressly creates; the Constitu-
tion leaves it up to Congress to create all inferior federal courts, which
are known as the U.S. district courts and the U.S. courts of appeals.
These inferior courts are, respectively, the federal courts of original juris-
diction and the initial courts of appellate jurisdiction in the vast majority
of cases before an appeal can ordinarily be taken to the High Court.
Section 1 continues by stating that federal judges shall hold office during
good behavior. Because it is rare for a federal judge to be removed from
office (only eight have been impeached and then convicted by the Senate),
they often serve into their seventies or their eighties. Justice Oliver
Wendell Holmes sat on the Supreme Court from 1902 to 1932—when
he finally retired at the ripe old age of ninety.
1 THE SUPREME COURT AND JUDICIAL POWER 3
Article III, Section 2 indicates that federal judges have the power to
decide cases relating to the Constitution, federal law, and federal treaties.
In broad terms, it also explains other cases to which the federal judi-
cial power extends—“to all Cases affecting Ambassadors, other public
Ministers and Consuls; to all Cases of admiralty and maritime Jurisdic-
tion; to Controversies to which the United States shall be a Party; to
Controversies between two or more States; between a State and Citizens
of another State; between Citizens of different States; between Citizens
of the same State claiming Lands under Grants of different States; and
between a State, or the Citizens thereof, and foreign States, Citizens or
Subjects.” Finally, Section 2 makes the distinction between the original
and appellate jurisdiction of the High Court. Original jurisdiction means
that a case can be initiated in the Supreme Court, which is rare, whereas
appellate jurisdiction means that the justices may only hear appeals from
the lower courts in those cases, which is typical.
Important Legal Concepts

Beyond being familiar with Article III’s major provisions, understanding
the Supreme Court’s power requires a grasp of other legal concepts,
particularly judicial review, stare decisis , jurisdiction, justiciability, polit-
ical questions, and standing to sue. Judicial review—by far the Court’s
most significant form of muscle—concerns its long-standing ability to
review legislative or executive actions and to declare them unconstitu-
tional (see, e.g., Whittington 2009). Even so, the power of judicial review
is not explicitly mentioned in Article III; rather, it is the creation of Chief
Justice John Marshall’s constitutional imagination in Marbury v. Madison
(1803), although its use may have been foreseen by Alexander Hamilton
in Federalist No. 78. Second, stare decisis stands for the notion that courts
should abide by precedents (prior judicial decisions) (see, e.g., Knight
and Epstein 1996; Spaeth and Segal 1999). Yet although the justices
ordinarily emphasize numerous precedents that arguably support their
conclusions, scholars have challenged this assertion. Segal and Spaeth
(2002, 81) conclude that precedent “provides virtually no guide to the
justices’ decisions. All that one can say is that precedent is a matter
of good form, rather than a limit on the operation of judicial policy
preferences.”
Third, the Supreme Court must have jurisdiction to hear and decide
a case, and the Court’s jurisdiction is of two types. As noted above, the
Court’s original jurisdiction is narrow, but its appellate jurisdiction (which
is defined by Congress) includes the much larger number and variety of
cases that the Court hears on appeal from federal and state courts. Next,
justiciability deals with the question of whether the Court is the proper
branch of government to decide an issue. If most justices determine that a
case presents a political question, the Court will announce that it is not the
proper branch of government for a decision—that is, the case is said to be
nonjusticiable (see Luther v. Borden [1849]; Colegrove v. Green [1946]).
However, if the justices decide that a case does not involve a political
question, then they are likely to rule that it is justiciable (see Baker v. Carr
[1962]; Nixon v. United States [1993]). The sixth concept, standing to
sue, concerns whether litigants meet the judicial rules that permit them to
bring a matter to the Court, such as whether they are directly affected by
the issue involved. If they lack standing, their appeal is denied (see, e.g.,
Flast v. Cohen [1968]; Massachusetts v. Environmental Protection Agency
[2007]).
Other concepts such as adverseness, advisory opinions, ripeness, and
mootness may also be relevant in a case. The Supreme Court requires
adverseness (that a case involve genuinely opposing parties) before it will
exercise power, so it will not decide friendly suits or hypothetical issues.
Likewise, the justices will not issue advisory opinions on questions not
raised in lawsuits, even at the request of executive or legislative branch
officials. Nor will they decide an appeal unless it is ripe—that is, it cannot
be too early or too late for review. Further, if a case is brought too late
because the issue has already been authoritatively decided, the justices will
hold that it is moot in most circumstances. Yet only the Court decides
whether it will exercise judicial power and how much. If the justices
find that no case or controversy is presented or that an issue is moot,
for instance, they are often choosing not to exercise power. If they say
they have jurisdiction and that an issue is justiciable, however, they then
routinely exercise their power by accepting the case for review.
Cases discussed in this chapter relate to whether the justices can or
will exercise power by deciding an appeal. As a result, judicial review is a
question in Marbury v. Madison; jurisdiction is a question in several cases,
including Chisholm v. Georgia (1793), Barron v. Baltimore (1833), Ex
parte McCardle (1869), and Rasul v. Bush (2004); justiciability is at issue
in Baker v. Carr (1962), Goldwater v. Carter (1979), and United States

v. Nixon (1993) (see Chapter 2); and standing is at the forefront in Flast
v. Cohen (1968). As we shall see, though, additional legal concepts will
emerge in other cases.
The Supreme Court as a Political Institution

The High Court relies on one or more of these legal concepts to explain
why it accepted a case and decided as it did and, thus, why it exercised
judicial clout. From this perspective, the Court is mainly functioning
as a legal institution. However, the Court is also a political institution,
composed of men and women with assorted backgrounds and polit-
ical views, appointed by different presidents, who function together in
an institutional setting where interactions involve forceful debate and
frequent division.2 As Justice Holmes (1920, 292) once wrote, “We are
very quiet there, but it is the quiet of a storm center.” Justice Robert
H. Jackson (1941, 312) put division on the Court somewhat differently:
“The student of our times will nowhere find the deeper conflicts of Amer-
ican political philosophy and economic policy more authentically and
intelligently portrayed than in the opinions and dissents of the members
of the Supreme Court.”
Within this storm center, “‘Politics’ can take many forms, such as the
particular ideological views of the justices, the mood of the public, and
the political preferences of the executive and legislative branches” (Epstein
and Walker 2020a, 22). The growth of divided votes over time especially
reveals the Court’s political side, as this division suggests that neutral
interpretations of the law are not occurring. According to Miller (1982,
5), “As a governmental organ with a definite political role to play, the
Court has had to pick its way through the mine fields of politics.” How,
in fact, could political minefields not have been appealed to the Court
countless times in over two hundred years?
The Electoral College, created in Article II, provides us with an oppor-
tunity to better understand how a key constitutional concept intersects
with real-world politics, demonstrating that the Court is both a legal and
political institution. Relying on the Electoral College for selecting a chief
executive has led to heated disputes and hard-hitting criticisms because
it can have close, highly divisive effects on election outcomes (see, e.g.,
Edwards 2019). Consider the 2000 election in which Al Gore (D-TN)
won the popular vote by roughly five hundred thousand ballots nation-
wide, but George W. Bush (R-TX) won the Electoral College vote (271 to
266) and, thus, the presidency (on the 2000 election see, e.g., Ackerman
2002; Gibson et al. 2003; Gillman 2001; Nicholson and Howard 2003).
Significantly, of course, the High Court’s decision in Bush v. Gore (2000)
effectively gave George W. Bush the election, 5–4, with five Republican
appointees voting in his favor.
Issues of representation in general remain fertile ground for exam-
ining the nexus of politics and law. The Court has repeatedly refused
to wade into debates over partisan gerrymandering (the drawing of elec-
toral boundaries in such a way that advantages one party over another),
declaring the matter to be a fundamentally political question and there-
fore not justiciable. However, during the brief period prior to the Court’s
decision in Rucho v. Common Cause (2019), in which the majority once
again reiterated its stance that partisan gerrymandering is an issue that
lay beyond the reach of the judiciary, it appeared as though the Court
had signaled that a standard upon which determinations of fairness in the
redrawing of district boundaries might be created.
Social scientists and mathematicians alike seized upon several justices’
suggestions in League of United Latin American Citizens v. Perry (2006)
that a legal test rooted in the concept of “partisan symmetry” might
be constructed so as to promote fairness in the conversion of votes to
seats in the legislature (Stephanopoulos and McGhee 2015). Thus, some-
thing of a cottage industry emerged within the scholarly community with
respect to the construction and testing of different metrics associated
with the concept of partisan symmetry (e.g., Best et al. 2018; Chen and
Rodden 2015; Tam Cho and Liu 2016). Hopes that such efforts might
yield a usable standard that the Court would be able to apply in future
cases involving partisan gerrymandering were dashed with the majority’s
outright refusal to engage with what Chief Justice Roberts described as
“sociological gobbledygook” during oral arguments in Gill v. Whitford
(2018). By deciding not to decide on the constitutionality of partisan
gerrymanders, then, the Court has all but assured that, at least for the
foreseeable future, one political party will continue to wield an outsized
degree of influence in Congress as well as in the legislative bodies of the
several states.
A similar sequence of events played out in the wake of the Court’s deci-
sion in Thornburg v. Gingles (1986), as some states interpreted that ruling
as effectively mandating the creation of majority-minority districts. States,
including most famously North Carolina, proceeded to construct majority

African American districts that gave rise to some of the first African Amer-
ican members of Congress from the South since the end of the nineteenth
century. Political scientists used the opportunity afforded by the surge
in minority legislators to study the effects of descriptive representation
on a host of downstream outcomes, finding in many cases that minority
interests are given greater voice under such a system (Canon 1999).
Nevertheless, the Court would later rule in Shaw v. Reno (1993), by a 5–4
decision, that such districts constituted impermissible racial gerrymanders.
So why does the appointment of a new Supreme Court justice often
constitute such a controversial decision? One obvious reason is that a new
justice helps to make decisions on critical legal and political matters that
are heavily influenced by their own personal backgrounds and attitudes. It
is also worth underscoring that several of the landmark cases cited above
were 5–4 decisions, wherein a single justice determined the direction of
national policy. Changes in the makeup of the Court, especially if such
changes involve the replacement of the median or “swing” justice, are
therefore often of great consequence for the practice of politics in the
United States. In the words of Segal and Spaeth (2002, 180), “Given
the Supreme Court’s role as a national policy maker, it would boggle
the mind if Presidents did not pay careful attention to the ideology and
partisanship of potential nominees.” Indeed, the justices frequently have
strong political backgrounds, diverse political careers, and, thus, deep-
seated political views of their own (see, e.g., Epstein et al. 2015; Murphy
1964; Segal and Spaeth 2002; Ulmer 1970).
To illustrate, Chief Justice Charles Evans Hughes, appointed by Pres-
ident Herbert Hoover, had previously been governor of New York, an
associate justice on the U.S. Supreme Court, the 1916 Republican presi-
dential nominee, and U.S. secretary of state before returning to lead the
Court in 1930. Chief Justice William Howard Taft had earlier served as
U.S. solicitor general, U.S. secretary of war, and then as U.S. president
(1909–1913) before being placed on the Court by President Warren G.
Harding. Justice Hugo L. Black, who sat on the Court between 1937
and 1971, had previously been a police court judge, a county pros-
ecuting attorney, and then a U.S. senator for a decade before being
promoted to the High Court by President Franklin Roosevelt. Justice
Frank Murphy, also a Roosevelt appointee, was elected mayor of Detroit
and then governor of Michigan before serving as U.S. attorney general
and, after that, being promoted to the High Court. And Chief Justice
Earl Warren, who was appointed by President Dwight D. Eisenhower

and led the Court from 1953 through 1969, was elected as Califor-
nia’s attorney general in 1938, remained in that post until his election
as governor of California in 1943, while becoming the Republican vice
presidential nominee in 1948. Eisenhower believed that Warren was a
man of moderate views when he appointed Warren in 1953, only to learn
later that he was wrong, as seen in seminal cases such as Brown v. Board of
Education (1954), Reynolds v. Sims (1964), Miranda v. Arizona (1966),
and Loving v. Virginia (1967), where Warren spoke for liberal Supreme
Court majorities (see O’Brien 2020).
More recent examples are noteworthy. Justice Stephen Breyer served
as a prosecutor on the Watergate Special Prosecution Force in 1973
and as counsel to the Senate Judiciary Committee throughout much of
the 1970s. Justice Elena Kagan worked in Bill Clinton’s White House
between 1995 and 1999 as counsel and policy advisor to the president.
Justice Sandra Day O’Connor was elected to the Arizona Senate for three
terms and served as majority leader for two years. Justices William Rehn-
quist and Antonin Scalia both worked as assistant attorney generals at the
Department of Justice for three years. Justice David Souter was elected
as New Hampshire’s attorney general for two years before his appoint-
ment to the Court, and Justice Clarence Thomas was chairman of the
Equal Employment Opportunity Commission for eight years (Epstein
et al. 2015).
The appointment of a Supreme Court justice can also lead to contro-
versy because they often serve for such a long period of time, potentially
affecting American democracy for decades after an appointing president
leaves office. One dozen justices have sat on the Court for over thirty
years, including three of its most liberal members—William O. Douglas,
Hugo L. Black, and William J. Brennan—as well as Chief Justice John
Marshall. Imagine the influence that these four men alone had on the
development of American law and politics. Moreover, a total of thirty-
five justices have sat on the High Court for over two decades, including
such well-known jurists as Louis D. Brandeis, Felix Frankfurter, Oliver
Wendell Holmes, and Harlan Fiske Stone (Abraham 1992; Epstein et al.
2015).
One final point on the justices and American politics: even after
their appointment s to the Court, many maintained high-level polit-
ical connections or pursued a variety of political activities. Perhaps
surprisingly, a number have been political advisors to sitting presidents.
Chief Justice John Jay advised George Washington; Chief Justice Roger
B. Taney advised Andrew Jackson and Martin Van Buren; Brandeis
advised Woodrow Wilson; Stone counseled Herbert Hoover; at least three
justices—Douglas, Frankfurter, and Stone—advised Franklin Roosevelt;
Chief Justice Fred Vinson advised Harry Truman; and Abe Fortas coun-
seled Lyndon B. Johnson. At one time or another, several justices were
also considered as potential presidential or vice presidential candidates.
Earlier in the nation’s history a few justices even openly campaigned for
presidential candidates or occasionally ran for their home-state governor-
ship. Other justices have held unique quasi-political positions, including
Robert Jackson, who was the chief prosecutor at the Nuremberg War
Crimes Trial following World War II, and Earl Warren, who headed the
commission that investigated President John F. Kennedy’s assassination
during the 1960s (Abraham 1992; Epstein et al. 2015).
Attitudes, Strategies, and Role Conceptions

Scholars have long known that variables other than law and precedent
significantly influence the justices’ votes and decisions (see, e.g., Murphy
1964; Pritchett 1948; Schubert 1965). Although justices virtually never
admit that they take a stand on legal issues because of their personal policy
views, their attitudes strongly affect how they vote (see, e.g., Segal and
Cover 1989; Segal and Spaeth 2002). This realization has led to the atti-
tudinal model, which argues that the justices’ attitudes determine voting
patterns, though voting is affected by a case’s facts. In the words of Segal
and Spaeth (2002, 312), “The attitudinal model holds that the justices
base their decisions on the merits on facts of the case juxtaposed against
their personal policy preferences.”
If the attitudinal model is generally credible and Supreme Court
justices actually vote based on their attitudes, then we should be able
to detect liberal or conservative trends in the High Court’s decisions
over time in separation of powers, federalism, and economic rights cases.
Thus, throughout this book we employ the Supreme Court Database
(accessed 2019), which is widely used by scholars to investigate various
aspects of Supreme Court decision making, to show how the Court has
evolved over time on a variety of issues. Figure 1.1 displays a scatterplot
depicting the proportion of the Court’s decisions with liberal outcomes
on judicial power (i.e., outcomes that favor the exercise of judicial power),
aggregated by term, from 1791 to 2018.3 Superimposed on top of this
Fig. 1.1 Ideological direction in judicial power cases, 1791–2018
scatterplot are a pair of LOWESS curves. LOWESS stands for Locally

Weighted Scatterplot Smoothing and is a technique that is often used to
extract a “smoothed” set of values from a “noisy” scatterplot (see Cleve-
land 1979). The approach fits a series of local linear regressions over
a span of data points that are determined by the analyst. Wider spans
produce smoother plots, while narrower ones produce plots that can often
appear “jumpier.” Wider spans risk smoothing away substantively inter-
esting and informative movement in the data, while narrower ones risk
“overfitting” the data and giving too much weight to outliers. It is for
this reason that we have chosen to produce two LOWESS curves—one
that adopts a wider smoother span (f = 2/3) and one that adopts a far
narrower one (f = .1). The former is represented by the dashed hori-
zontal line, while the latter is depicted by the solid horizontal line. The
two vertical lines in the figure demarcate the different constitutional eras
that we have placed at the center of much of our discussion throughout
this book (see the discussion of McCloskey [2016] at the end of this
chapter’s introductory essay).
This figure allows us to visualize how the Court has occasionally
trumpeted its power but has usually been reluctant to do so over time.
With reference to the solid LOWESS curve (the one that uses the
narrower span), moving from left to right, the Court’s judicial power
cases begin in a highly liberal position in the first period, reflecting
Chief Justice Marshall’s opinions establishing a strong Supreme Court,
including Marbury v. Madison. The early years of the Court represent a
high-water mark of sorts when it comes to the exercise of judicial power.
However, there is a great deal of term-to-term variability in the first
period—and, indeed, throughout the time series—so the judicial power
trend line quickly slopes downward, rises slightly again in a liberal direc-
tion, and then fluctuates until the 1860s. In the second period, from the
end of the American Civil War until just before the turn of the century,
the trend is fairly flat, then it turns downward during the twilight of the
nineteenth century, and it remains steady until the dawning of the third
constitutional era. The ideological direction in judicial power cases then
briefly rises early in the third period, only to fluctuate down and then
back up, leveling off in the 1990s and continuing along that basic path in
recent years. An entirely different storyline emerges with reference to the
second LOWESS curve that we fitted to the scatterplot, as a wider span
(the dashed line) produces a curve that is essentially flat throughout the
entire history of the Court, with only a slight downward trend emerging
since the energetic exercise of judicial power during the early days of the
Court when Chief Justice John Marshall established the judiciary as a
co-equal branch of the national government.
Figure 1.2 depicts liberal outcomes, aggregated by term, in judicial
power cases decided between Chief Justice Charles Evans Hughes (1930–
1941) and Chief Justice John G. Roberts (2005–present). Once more,
superimposed on each scatterplot is a linear regression line, the slope of
which is relatively flat during the Hughes Court, becomes slightly more
liberal under Chief Justice Harlan Fiske Stone, and then quickly declines
on a more conservative trajectory under Chief Justice Fred Vinson. With
President Eisenhower’s appointment of Earl Warren as chief justice, the
trend line flattens, alternates slightly more liberal, then slightly more
conservative, and finally in a somewhat more liberal direction under Chief
Justices Warren E. Burger, William H. Rehnquist, and Roberts. The deci-
sions handed down under the last two chief justices also appear to have
the distinction of exhibiting relatively high levels of variability around the
trend line.
Judicial strategies and small-group interactions additionally influence
how the justices decide cases (see, e.g., Epstein and Knight 2017; Lax
and Rader 2015; Maltzman and Wahlbeck 1996; Maltzman et al. 2000;
Fig. 1.2 Ideological direction in judicial power cases in the third constitutional
era
Segal 1997). Scholars using this theory stress that the justices are polit-
ical actors pursuing certain policy goals while serving on the Court. This
rational choice approach does not deny that attitudes or role concep-
tions influence the justices’ opinions and voting behavior; rather, they
emphasize that the justices’ ability to achieve their policy goals “depends
on a consideration of the preferences of other relevant actors (such as
their colleagues and members of other political institutions), the choices
they expect others to make, and the institutional context in which they
act” (Epstein and Walker 2020a, 37). Different strategic models vary in
their details, but Epstein and Knight (1998, 10–11) boil their model
down to three concepts: “justices’ actions are directed toward the attain-
ment of goals; justices are strategic; and institutions structure justices’
interactions.” Although strategic models are an important part of today’s
literature on judicial politics, they are not relied on in this volume because
we lack the type of documents necessary for this kind of analysis.
The role conceptions of judicial activism and restraint are also rele-
vant to understanding how and why justices make their decisions (see,
e.g., Halpern and Lamb 1982; Segal and Spaeth 2002; Spaeth 1964;
Whittington 2014). Activism is said to be evident when justices overrule
the decisions of other branches of government, inject new meanings into

constitutional language and reasoning, or rely heavily on constitutional
interpretation instead of statutory construction. Conversely, restraint
suggests that justices defer to the legislative and executive branches, abide
by the intent of the Constitution’s framers, or rely on statutory rather
than constitutional construction wherever possible. According to these
notions, the Court exercises judicial power when it behaves in an activist
mode and exercises restraint when it concedes to the determination of the
elected branches.
However, there are problems with these concepts because even if
justices are capable of exercising restraint on the modern Court, they
have in fact relied far more on activism than restraint for many decades
(see, e.g., Epstein and Landes 2012; Segal and Spaeth 2002). After all,
judges are people and, thus, unlikely to be able to set aside their own
views and values. Moreover, through the years the growing reach of the
federal government into matters that had previously been the domain
of the states has simply afforded the Court with more opportunities to
come into conflict with the elected branches. Despite this, justices have
long given lip service to restraint while emphasizing the importance of
expounding the law. In Luther v. Borden, Chief Justice Taney insisted that
“it is the province of a court to expound the law, not to make it.” But
what exactly does it mean to “expound the law”? In a somewhat related
vein, Chief Justice Marshall observed in Osborn v. The Bank of the United
States (1824) that “judicial power, as contradistinguished from the power
of the laws, has no existence. Courts are the mere instruments of the
law and can will nothing. When they are said to exercise a discretion,
it is a mere legal discretion, a discretion to be exercised in discerning
the course prescribed by law; and, when that is discerned, it is the duty
of the Court to follow it.” Perhaps the simplest explanation of restraint
came from Justice Owen Roberts in United States v. Butler (1936), who
noted, “When an act of Congress is appropriately challenged in the courts
as not conforming to the constitutional mandate, the judicial branch of
the Government has only one duty—to lay the article of the Constitution
which is invoked beside the statute which is challenged and to decide
whether the latter squares with the former. All the court does or can
do is to announce its considered judgment upon the question.” Roberts
claimed, “The only power it has, if such it may be called, is the power
of judgment. This court neither approves nor condemns any legislative
policy.” This suggests that “[i]ts delicate and difficult office is to ascertain
and declare whether the legislation is in accordance with, or in contra-

vention of, the provisions of the Constitution; and, having done that, its
duty ends.”
Table 1.1 provides a brief description of selected rulings on the
Supreme Court and judicial power, some of which appear to illustrate the
concepts of activism or restraint. For instance, Griswold v. Connecticut
(1965) is an example of liberal activism because it recognized a right
to privacy emanating from the “penumbra” of the First, Third, Fourth,
Fifth, and Ninth Amendments, even though the word “privacy” is never
explicitly mentioned in the Constitution. Similarly, Baker v. Carr was
a liberal activist decision because it originally created the one person,
one vote doctrine that was subsequently used to reapportion congres-
sional and state legislative districts throughout the nation, and Roe v.
Wade (1973) exhibits liberal activism in that it held for the first time
that a woman’s right to privacy is violated by state laws that prohibit all
abortions except those undertaken to save a mother’s life. Conversely,
Calder v. Bull (1798), the Slaughterhouse Cases (1873), and Bowers v.
Hardwick (1986) arguably embody the use of judicial restraint. Calder
entailed a deliberately narrow interpretation of an ex post facto law, the
Slaughterhouse Cases embraced a restrictive interpretation of the Four-
teenth Amendment, and Bowers declared that the Due Process Clauses
of the Fifth and Fourteenth Amendments did not guarantee homosex-
uals a constitutional right to engage in consensual sodomy. Overall, the
Court has been much more activist during the past century or more, but
during that time some cases also illustrate conservative activism, such as
Lochner v. New York (1905), Adair v. United States (1908), and Adkins
v. Children’s Hospital (1923) (see Chapter 4). Even so, a litany of others
seems to typify liberal activism, including Brown v. Board of Education
(1954), New York Times v. Sullivan (1964), Miranda v. Arizona (1966),
Brandenburg v. Ohio (1969), Lawrence v. Texas (2003), and Obergefell v.
Hodges (2015).
With these distinctions in mind, let’s turn to Rucho v. Common
Cause (2019), which demonstrates some of the ideas mentioned above
while highlighting the nexus between the Supreme Court and American
politics. In 1960, the Warren Court announced a new policy by recog-
nizing that gerrymandering—the manipulation of jurisdictional voting
boundaries to favor a certain racial group—violated the Constitution.
Specifically, in Gomillion v. Lightfoot (1960) the Court unanimously
declared that city officials violated the Fifteenth Amendment’s right
to vote by racial gerrymandering when they redrew jurisdictional lines
Table 1.1 Selected decisions on the Supreme Court and judicial power
Chisholm v. Georgia (1793). The Supreme Court’s jurisdiction includes lawsuits by a

citizen of one state against another state
Marbury v. Madison (1803). The Supreme Court may declare a statutory provision
passed by Congress null and void because it conflicts with the Constitution
Barron v. Baltimore (1833). The Supreme Court does not have appellate jurisdiction
to decide whether the Fifth Amendment’s prohibition against the taking of private
property for public use is applicable to the states
Luther v. Borden (1849). The Supreme Court may not resolve the political question of
which of two state governments is in fact the lawfully established one
Ex parte McCardle (1869). Congress may deny the Supreme Court appellate
jurisdiction in appeals from federal circuit courts if they are taken under the Habeas
Corpus Act of 1867
Slaughterhouse Cases (1873). A state may grant a corporate charter to one company to
handle the slaughterhouse business for an entire city in order to protect the public
health
United States v. Butler (1936). Congress may not pass a law imposing a tax on the
processing of agricultural products to, in turn, pay farmers not to grow certain crops
(see Chapter 5)
Brown v. Board of Education (1954). Segregation of public-school children, based
solely on race, deprives them of equal educational opportunity and, thus, equal
protection of the law
Gomillion v. Lightfoot (1960). City officials’ racial gerrymandering violates the
Fifteenth Amendment’s right to vote if they redraw jurisdictional lines in order to
guarantee that only white political candidates would win city elections
Baker v. Carr (1962). The malapportionment of state legislative districts is not a
nonjusticiable political question that the Supreme Court should decline to decide
Griswold v. Connecticut (1965). A state law that forbids the use or assistance in the
use of any drug or medicinal instrument to prevent pregnancy violates the fundamental
constitutional right to marital sexual privacy
Flast v. Cohen (1968). A taxpayer has standing to challenge a federal statute as
violating constitutional provisions that restrict Congress’s taxing and spending powers
Roe v. Wade (1973). A state statute that outlaws all abortions except those undertaken
to save a mother’s life violates a woman’s right to privacy
Goldwater v. Carter (1979). A federal court may not resolve a dispute between
members of the Senate and the president involving the abrogation of a treaty
Immigration and Naturalization Service v. Chadha (1983). A legislative veto is
unconstitutional because it may be exercised by only one house of Congress and result
in a congressional action not being presented to the president for approval or
disapproval (see Chapter 2)
Bowers v. Hardwick (1986). Homosexuals do not have a fundamental right to engage
in consensual sodomy
(continued)
Table 1.1 (continued)
Shaw v. Reno (1993). State legislatures may not redraw district lines in a way that is so
irregular on their face that they rationally can be viewed only as an effort to segregate
the races for purposes of voting, without regard for traditional districting principles
and without a sufficiently compelling justification
Rasul v. Bush (2004). Federal courts have jurisdiction in cases involving habeas corpus
requests from aliens detained by the president in a territory over which the United
States exercises plenary and exclusive jurisdiction but not ultimate sovereignty
Rucho v. Common Cause (2019). Partisan gerrymandering is a political question, and
the federal courts cannot decide these issues
in order to guarantee that only white political candidates would win

elections. This liberal line of constitutional reasoning increased the like-
lihood not only that racial minorities could vote but, indeed, that they
would vote for more liberal political candidates. Moreover, this line
of reasoning, with variations, continued through several leading deci-
sions for over two decades (see, e.g., Miller v. Johnson [1991]; Shaw v.
Reno [1993]), although they were constitutionally anchored in the Four-
teenth Amendment’s Equal Protection Clause rather than the Fifteenth
Amendment.
Then the Court adopted an entirely different political and constitu-
tional viewpoint when it handed down Rucho, which ruled that partisan
gerrymandering—gerrymandering based on voters’ political party identi-
fication rather than race—is a political question and that federal courts
had no role in deciding these issues (see, e.g., Engstrom 2020). Political
parties that control a state legislature have long used partisan gerryman-
dering to develop voting lines that assist their own candidates, but the
Roberts Court provided no remedy in Rucho for those whose votes were
diluted. In the words of Chief Justice John Roberts, “Federal judges have
no license to reallocate political power between the two major political
parties, with no plausible grant of authority in the Constitution, and
no legal standards to limit and direct their decisions.” So although for
decades the Court had exercised liberal activism in racial gerrymandering
cases, it drew the line in partisan gerrymandering by declaring it to be
a nonjusticiable issue. No matter how egregious the gerrymandering, it
would now be beyond the reach of federal judges and must be handled at
the state level. To many observers Rucho constituted conservative activism
following a long string of liberal gerrymandering decisions—a ruling that
favored Republican politicians because Republican-controlled state legis-

latures had usually been more aggressive in partisan gerrymandering than
Democratic-controlled state legislatures (Charles and Fuentes-Rohwer
2018).
The Court’s outright refusal to enter into the fray over gerrymandering
in recent years is likely to have effects that are felt in the political realm,
as its inaction all but ensures that the practice of partisan officials picking
their voters—rather than the voters choosing their representatives—is
destined to continue absent interventions on the part of individual states.
What is more, gerrymandering is hardly race-neutral in application, for the
partisan coalitions that exist in today’s political moment find most African
Americans and members of other minority groups firmly ensconced within
the Democratic Party. As a result, partisan gerrymanders that system-
atically disadvantage Democrats, coupled with the fact that most cities
are heavily Democratic and therefore often “waste” Democratic votes, no
matter how the maps are drawn (Chen and Rodden 2013), also tend to
disadvantage African Americans and other minorities with respect to the
translation of votes into seats. The vote-to-seat conversion itself provides
yet another reason to bemoan the Court’s reluctance to engage with the
issue of partisan gerrymandering, as the practice affords political minori-
ties at the national level with the ability to wield power over numerically
superior (partisan) political groups (again on a national scale) and to
frustrate efforts at safeguarding the republic against minority tyranny.
Judicial Impact
Each chapter of this volume contains an introductory essay like this one
that includes a brief description of some of the legal, political, economic,
or social impacts that particular rulings had in America (on the study
of judicial impact see, e.g., Canon and Johnson 1999; Rosenberg 2008;
Wasby 1970). In order to understand the concept of judicial impact, again
consider Rucho, which illustrates the effect that only a few new Supreme
Court appointees can have on pressing political problems, in this case
partisan gerrymandering. President Trump appointed two new justices
during his first two years in the White House—Neil M. Gorsuch and
Brett M. Kavanaugh. Both Trump appointees in turn voted with the 5–4
Rucho majority, along with Chief Justice Roberts and Justices Samuel A.
Alito and Clarence Thomas. All five majority justices were appointed by
Republican presidents in this decision that contained an obvious conser-

vative spin. As a result, many commentators immediately expected Rucho
to have notable short- and long-term political impacts. As Chris Cillizza
(2019) of CNN wrote, Rucho “amounts to a massive political victory for
Republicans, not just in the moment, but also likely for the next decade-
plus.” Still, Rucho’s impact will ultimately cut in both directions, for “by
taking the federal courts out of the business of policing extreme partisan-
ship, the message from the Roberts Court to our political leaders, on both
the right and the left, is that it is perfectly fine to do whatever you have
to do to gain and keep political power” (Charles and Fuentes-Rohwer
2019).
Added to Rucho’s political impacts are its legal effects, which alarmed
Court liberals. Justice Elena Kagan, a Barack Obama appointee, writing
for three other dissenters, complained that partisan gerrymandering
“debase[s] and dishonor[s] our democracy, turning upside-down the core
American idea that all governmental power derives from the people.”
She went on to write, “The practices challenged in these cases imperil
our system of government. Part of the Court’s role in that system is to
defend its foundations. None is more important than free and fair elec-
tions.” Charles Fried (2019), President Ronald Reagan’s solicitor general,
found numerous flaws in Roberts’s majority reasoning and agreed with
Kagan: “Rucho was indeed an occasion of deep sorrow—for the Court
and its chief, for the rational development of doctrine, but most of all for
American democracy. Read it and weep.”
Several other watershed Supreme Court decisions on judicial power
had significant impacts. Marbury v. Madison had the short-term political
impact of the Court avoiding a clash with President Thomas Jefferson’s
administration, but long-term political and legal impacts of Marbury have
been extraordinary because Chief Justice Marshall presented an impres-
sive defense of judicial review that has stood the test of time. Marbury,
combined with Marshall’s other decisions, has led scholars to widely
proclaim him to be the greatest or most powerful justice in Supreme
Court history (see Epstein et al. 2015). In Chisholm v. Georgia, a judi-
cial power case announced before Marshall’s appointment, Justice James
Wilson unanimously declared that the High Court’s jurisdiction extends
to lawsuits filed by citizens of one state against another state. This ruling
had the short-term effect of stimulating more cases being filed against the
states as well as the ratification of the Eleventh Amendment five years later.
In the long term, Chisholm additionally fortified the power of the Court
but simultaneously inflamed feelings of cynicism among those favoring

states’ rights (Goldman 1991; McCloskey 2016). Baker v. Carr is a more
recent decision that stands for the unprecedented principle that under
Article III the malapportionment of state legislative districts is a justiciable
question that the Supreme Court could decide. True, Baker was disliked
in some quarters, but it had a much more lasting impact—giving greater
power to suburban and urban neighborhoods by significantly altering the
political composition of state legislatures and representation in the U.S.
House of Representatives (Goldman 1991; Wasby 1970). Additionally,
the doctrine of one person, one vote that was established in Baker had the
effect of ensuring a more equitable distribution of state spending because
geographic units that had been underrepresented in state legislatures
gained parity (Ansolabehere et al. 2002).
Other rulings had less of an impact than the above illustrations, though
at first glance they appeared to have greater implications. Luther v. Borden
(1849) determined that, according to Articles III and IV, the Supreme
Court could not resolve the political question of which of two state
governments was the lawfully established one. Luther supported judicial
supremacy and judicial review (Goldman 1991); however, even though
Luther first enunciated the political question principle, the justices only
intermittently relied on it in subsequent decades. Or take Flast v. Cohen
and Immigration and Naturalization Service v. Chadha (1983). Flast
announced that the Taxing and Spending Clause of Article I and the
Establishment and Freedom of Religion Clauses of the First Amendment
gave taxpayers standing to challenge a federal statute as violating constitu-
tional provisions that restrict Congress’s taxing and spending powers, but
ultimately the Court has rarely relied on Flast in its decisions. Likewise,
Chadha announced that the legislative veto was unconstitutional because
it could be exercised by only one house of Congress and, thus, result in a
congressional action not being presented to the president for approval or
disapproval. Even so, in the long term, Chadha had little impact because
Congress changed its traditional use of legislative vetoes so that in fact
they remained (Fisher 2014; Goldman 1991).
Of Time, Theory, and Robert McCloskey

This book’s focus is principally on the Supreme Court’s exercise of
power. Related to this, we occasionally refer to particular “Courts,”
depending on who served as chief justice when the ruling was announced;
Table 1.2 Chief

Chief justice Years of service Appointing
justices of the Supreme
president
Court
John Jay 1789–1795 George
Washington
John Rutledge 1795 George
Washington
Oliver Ellsworth 1796–1800 George
Washington
John Marshall 1801–1835 John
Adams
Roger B. Taney 1836–1864 Andrew
Jackson
Salmon P. Chase 1864–1873 Abraham
Lincoln
Morrison R. Waite 1874–1888 Ulysses S.
Grant
Melville W. Fuller 1888–1910 Grover
Cleveland
Edward D. White 1910–1921 William
Howard
Taft
William Howard 1921–1930 Warren G.
Taft Harding
Charles Evans 1930–1941 Herbert
Hughes Hoover
Harlan Fiske Stone 1941–1946 Franklin D.
Roosevelt
Fredrick M. Vinson 1946–1953 Harry
Truman
Earl Warren 1953–1969 Dwight D.
Eisenhower
Warren Earl Burger 1969–1986 Richard M.
Nixon
William H. 1986–2005 Ronald
Rehnquist Reagan
John G. Roberts Jr. 2005–present George W.
Bush
for example, Rehnquist Court decisions are those handed down while
William Rehnquist was chief justice. Table 1.2 shows the men who have
served as chief justice and their years of service. (Of course, as of this
writing there has never been a female chief justice, although four women
have served on the Court—Justices Sandra Day O’Connor, Ruth Bader
Ginsburg, Sonia Sotomayor, and Elena Kagan.) But there is far more to
understanding the Supreme Court than simply referring to the seventeen

chief justices and their colleagues. In this context, we emphasize one of
Robert McCloskey’s major contributions to the study of constitutional
law, a theory referred to throughout this volume, so we present it early
on.
McCloskey, a political scientist and constitutional historian, presented
a theory in his classic book, The American Supreme Court, of the
Court’s three great constitutional eras, each lasting for decades and each
dominated by key political and judicial themes.4 McCloskey (2016, 15)
concisely summarized his theory early on and then periodically relied on
that framework in the remainder of his book. Here is the key part of
McCloskey’s summary: “Conceding that there are variations within the
framework, we can nevertheless identify three great periods in American
constitutional development: 1789 to the close of the Civil War; 1865 to
the ‘Court Revolution’ of 1937; and 1937 to the present,” he explained.
“The judicial interests and values that characterize each period are suffi-
ciently articulated to be significant; and the Court’s struggle to define
its role as great new historical movements alter the backdrop, supplies a
further element of dramatic change and uncertainty.”
To briefly elaborate, McCloskey argues that during the first constitu-
tional era, spanning the period from the Constitution’s ratification to the
Civil War, America regularly confronted forces that threatened to tear it
apart.5 That condition produced a Court whose mission was “to cham-
pion nationalism against the states’ rights movement” (59), and Marshall
led the early Court to ensure that the nation would survive against those
who fervently favored increasing the power of the states.
During the second constitutional era, lasting from the end of the
Civil War to 1937, the Court concentrated far more on the “question
of whether the government should control capitalism, and how much it
should control it” (68). The constitutional and political struggle over how
much the government should control economic activity came to a head
as America moved from an agrarian to an industrial nation. McCloskey
contends that during this second constitutional era “the major value
of the Court … was the protection of the business community against
government. The nation-state relationship,” he wrote, “once salient, was
now subordinate; the fear that the states would wound or destroy the
nation was replaced by the fear that government, state or national, would
unduly hinder business in its mission to make America wealthy and wise”
(69).
McCloskey indicates that the Court again adjusted its focus, priorities,
and policies in the third constitutional era in order to emphasize indi-
vidual civil rights and liberties (see McCloskey, chaps. 7–8). This third
period he labeled the civil rights era. According to McCloskey, by the
end of the 1930s the necessary political and historical conditions existed
for the country and the Court to pass into this third constitutional period.
If the justices were to play a meaningful role in modern politics and law,
though, they needed to evolve a new sphere of interests and a new set
of values to guide them. The two principal problems of the past—the
nation-state problem and the business-government problem—had largely
disappeared. As a result, the Court once more had to reorient its polit-
ical and policy-making role, concentrating on individual political and legal
rights.
Figure 1.3 plots the data for all Supreme Court judicial power deci-
sions across McCloskey’s three constitutional eras based on the U.S.
Supreme Court Database (2019). During the first era the Marshall
Court’s influence is immediately apparent; its pro-judicial power deci-
sions are clearly visible in the upper-left portion of the figure. The trend
line declines, though, throughout the remainder of the first constitutional
era, despite occasionally fluctuating higher in selected cases. During the
second constitutional era the trend line starts at a lower intercept and
gradually declines a bit further between the chief justiceships of Salmon
P. Chase and Charles Evans Hughes, even as the observations are more
tightly clustered around the trend line than they were in the previous
Fig. 1.3 Ideological direction in judicial power cases across constitutional eras
constitutional era. However, early on during Chief Justice Harlan Fiske

Stone’s Court and continuing until the Roberts Court of today, the
constellation of data points again open up a bit. Importantly, we also
see a slow increase in Supreme Court decisions favoring the exercise of
judicial power, as was true during the Warren Court period.
We will return to McCloskey’s framework throughout this book, as
his tripartite division of the history of the Court into constitutional eras
places legitimacy at the center of the Court’s motivations, given that it
has “no influence over either the sword or the purse” (Federalist No. 78).
The exercise of judicial power, then, often depends on how the Court is
seen by the other two branches and in the eyes of the public (see, e.g.,
Gibson and Nelson 2015, 2016).
Judicial Review
Marbury v. Madison, 1 Cranch 137 (1803)
Facts: John Marshall was an ardent Federalist, while Thomas Jefferson
was the founder of the present-day Democratic Party. Prior to Jeffer-
son’s election as president in 1800, Federalist president John Adams and
his secretary of state, John Marshall, concluded that their party’s future
power must rest in part in the judicial branch. As a result, before leaving
office Adams appointed Marshall as chief justice of the Supreme Court.
The Federalist Congress also passed the Judiciary Act of 1801, which
created new lower federal court judgeships and new justices of the peace
for the District of Columbia. Time was running out before Jefferson’s
inauguration, however, and although Adams signed all the justice of the
peace commissions, he left seventeen to be delivered by the Jeffersonians.
Jefferson refused to allow his secretary of state, James Madison, to deliver
them. The stage was set for William Marbury, one of Adams’s appointees,
to challenge Madison for his commission as justice of the peace. Relying
on Section 13 of the Judiciary Act of 1789, Marbury petitioned the
Supreme Court for a writ of mandamus —a court order commanding a
public official to carry out his or her official duty. The writ would attempt
to compel Madison to deliver the commission. Marshall requested from
Madison any reasons why the writ of mandamus should not be issued,
but Madison ignored the request.
Issue: In light of Article III and Section 13 of the Judiciary Act
of 1789, may the Supreme Court declare a statutory provision passed
by Congress null and void because it expands the Court’s original

jurisdiction?
Decision: Yes
Vote: Unanimous
Majority Opinion: Chief Justice Marshall begins by arguing that
Marbury had a right to the commission of justice of the peace because
the commission was signed by the president and sealed by the secretary
of state. Marbury was thus officially appointed and under law had the
right to the position of justice of the peace in the District of Columbia.
To deny that commission violated the law. Next, Marshall contends that
federal law must afford Marbury a remedy because where a legal right
exists, there must be a legal remedy. The United States has a government
of laws and not of men, the chief justice says, but it will cease to be that
unless remedies are provided when legal rights are violated. In this case,
the Constitution gave the president certain political powers to carry out
his responsibilities, and one of those powers was to appoint a secretary of
state. Nevertheless, where Congress has approved judicial appointments,
as here, and the secretary of state has refused to deliver the commissions,
“the individual who considers himself injured has a right to resort to the
laws of this country for a remedy.”
One central aspect of Marshall’s reasoning relates to whether a writ of
mandamus , issued by the Supreme Court, is the correct remedy in this
case, and he says the answer depends on two factors. The first is the nature
of the writ applied for—a writ of mandamus is a writ, directed toward a
government officer, requiring him or her to carry out some specific legal
responsibility. And this is, Marshall argues, “a plain case for a mandamus,
and it only remains to be inquired, whether it can issue from this court….
The [Judiciary Act of 1789] to establish the judicial courts of the United
States authorizes the supreme court ‘to issue writs of mandamus.” But
Marshall writes that “if this court is not authorized to issue a writ of
mandamus to such an officer [the Secretary of State], it must be because
the law is unconstitutional.”
Marshall then begins to determine whether the mandamus provision
of the Judiciary Act of 1789 is constitutional given the meaning of the
federal judicial power as defined by Article III of the Constitution. As
pointed out earlier, Article III, Section 1 reads, “The judicial Power of
the United States, shall be vested in one supreme Court, and in such
inferior Courts as Congress may from time to time ordain and establish.”
Then Section II, Clause 1 specifically sets out the original jurisdiction
of the Supreme Court as extending to “all Cases affecting Ambassadors,

and other public Ministers and Consuls, and those in which a State
shall be a Party.” Otherwise the Court shall have appellate jurisdiction
as determined by Congress.
Now Marshall says, “it has been insisted, at the bar [that is, before this
Court], that the original jurisdiction” of the Court may be expanded by
Congress through normal legislation such as Section 13 of the Judiciary
Act of 1789. But Marshall disagrees. As he observes, “If Congress remains
at liberty to give this court appellate jurisdiction, where the constitution
has declared it shall be original; and original jurisdiction where the consti-
tution has declared it shall be appellate; the distribution of jurisdiction,
made in the constitution, is form without substance.” As a consequence,
he reasons, “To enable this court, then, to issue a mandamus, it must be
shown to be an exercise of appellate jurisdiction” because the Court’s
original jurisdiction is spelled out in the Constitution, and it fails to
mention mandamus.
Marshall continues by arguing that the people established funda-
mental, permanent principles in the Constitution, and it thus reflects
their “original and supreme will.” That Constitution bestows powers on
the individual branches of government as well as placing limits on their
powers. As a result, obviously “the constitution controls any legislative act
repugnant to it.” In other words, Congress cannot change the Constitu-
tion by a normal act of Congress. The Constitution is the highest law
of the land, and Congress may not alter it without formally amending it.
In Marshall’s words, “it is a proposition too plain to be contested, that
the constitution controls any legislative act repugnant to it; or, that the
legislature may alter the constitution by an ordinary act.”
Marshall therefore maintains that “an act of the legislature, repugnant
to the constitution, is void” and that it is the task of the Supreme Court
to make that determination. In a famous passage he writes, “It is, emphat-
ically, the province and duty of the judicial department, to say what the
law is.” And: “If, then, the courts are to regard the constitution, and the
constitution is superior to any ordinary act of the legislature, the constitu-
tion, and not such ordinary act, must govern the case to which they both
apply.” Finally, Marshall asserts that judges must examine some aspects of
the Constitution to determine its meaning, and he provides examples.
Jurisdiction
Chisholm v. Georgia, 2 Dallas 419 (1793)
Facts: The executor of the estate of a South Carolina merchant sued the
state of Georgia in federal court for payment of a debt incurred during
the Revolutionary War. The federal court ruled in favor of Georgia,
concluding it had no jurisdiction because a sovereign state cannot be sued
without its consent, and appeal was taken to the Supreme Court.
Issue: In light of Article III, Section 2, does the jurisdiction of the
Supreme Court extend to lawsuits by a citizen of one state against another
state?
Decision: Yes
Vote: 4–1
Majority Opinion: Justice Wilson begins by addressing the concept of
sovereignty. He notes that it is not mentioned in the Constitution; not
even the people are said to be sovereign. Thus, Wilson asserts, a state is
subordinate to its people, but everything else is subordinate to the state.
As a result, whereas a state may enter contracts, it may be held account-
able—just as citizens are—for willfully refusing to abide by a contract.
This too suggests that a state is not sovereign and, thus, does not exercise
supreme power. To be sovereign, the state must have subjects, but under
the Constitution there are only citizens, not subjects. If Georgia has no
sovereignty over its own citizens, Wilson argues, certainly Georgia has no
sovereignty over citizens of another state.
Before joining the issue of whether the Constitution makes a state
subject to the jurisdiction of a federal court under these circumstances,
Wilson observes that the citizens of the nation as a whole approved the
Constitution, and the American people intended the states to be subject
to both the legislative and executive powers of the national government.
Because of this, logic would dictate that the Supreme Court has juris-
diction in cases where the states are a party. For example, the Court’s
jurisdiction would extend to questions dealing with whether the states
have ensured justice and domestic tranquility or if they have impaired
the obligation of contracts. Wilson contends as well that the literal and
explicit language of Article III confirms beyond all doubt his conclusion
about the Court’s jurisdiction here: “The judicial power shall extend to
all cases, in law and equity … between a State and Citizens of another
state.”
Barron v. Baltimore, 1 Peters 243 (1833)

Facts: John Barron claimed that Baltimore denied him of his property
without just compensation under the Fifth Amendment when its civic
improvements made his wharf unfit for shipping. He lost his case in the
lower courts and appealed to the Supreme Court.
Issue: In light of Article III, does the Supreme Court have appellate
jurisdiction to decide whether the Fifth Amendment’s prohibition against
the taking of private property for public use without just compensation is
applicable to the states?
Decision: No
Vote: Unanimous
Majority Opinion: Chief Justice Marshall’s reasoning has three basic
steps. First, the Constitution was established by the people of the United
States, and the states have separate constitutions. Second, therefore, any
general limitations on the power of government in the U.S. Constitution
are limitations on the power of the federal government and are not appli-
cable to the states. Third, it then follows that the Fifth Amendment is
applicable only to the federal government, and by inference the Bill of
Rights applies only to the federal government.
Marshall deals with one more matter. Barron’s attorney maintained
that the Constitution was intended to restrain the power of state govern-
ments as well as the federal government, pointing to Article I, Section 10,
which prohibits the states from passing bills of attainder or ex post facto
laws or impairing the obligation of contracts, among other things. On this
final point Marshall says that Article I, Section 9 explicitly outlines various
prohibitions against the federal government. Then he seems to concede
that Article I, Section 10, is an exception to the general rule that the U.S.
Constitution deals only with the federal government. Despite this excep-
tion, it is widely understood, Marshall observes, that the Bill of Rights
applies to the federal government, not to the states. If state citizens want
free speech or the right to counsel, for example, they must provide for
them in their own state constitutions. As a result, the Fifth Amendment
applies only to the federal government, and the Supreme Court has no
jurisdiction in this case.
Ex Parte McCardle, 7 Wallace 506 (1869)

Facts: After the Civil War, Congress’s Reconstruction Acts placed the
South, in effect, under military control. William McCardle, a Mississippi
journalist who wrote editorials urging resistance to the Reconstruction
Acts, was arrested and held for trial before a military court. Based on the
Habeas Corpus Act of 1867, McCardle petitioned a federal circuit court
in Mississippi for a writ of habeas corpus , an order issued to determine
whether authorities are illegally holding a person. He was granted the
writ of habeas corpus but lost his case. McCardle then appealed to the
Supreme Court under the 1867 Habeas Corpus Act, but because Radical
Republicans in Congress did not want the Supreme Court to decide this
case, they amended the 1867 act to deny appellate jurisdiction to the
Court in all cases arising under the 1867 law that were appealed from
the federal circuit courts. All of this is fundamental to understanding the
Supreme Court’s jurisdiction and, thus, its power. Article III, Section 2,
Clause 2, gives Congress control of the Supreme Court’s appellate juris-
diction, so Congress may change the appellate jurisdiction of the Court,
and theoretically Congress might even try to abolish the Court’s appel-
late jurisdiction in part or even altogether, leaving the Court with only
original jurisdiction cases.
Issue: In light of Article III, Section 2, Clause 2, may Congress deny
the Supreme Court appellate jurisdiction in appeals from federal circuit
courts if those appeals are taken under the Habeas Corpus Act of 1867?
Decision: Yes
Vote: Unanimous
Majority Opinion: Chief Justice Chase observes that Congress may
make exceptions to the Supreme Court’s appellate jurisdiction, and he
recognizes that Congress had exercised this power by repealing the
Supreme Court’s appellate jurisdiction under the 1867 Habeas Corpus
Act. This being true, he writes, it “is hardly possible to imagine a plainer
instance of positive exception.” Moreover, because Congress plainly has
the power to control the federal court’s appellate jurisdiction, it is not the
Supreme Court’s job to inquire into Congress’s motivations for making
exceptions. All the Court could do was admit that it lacks appellate juris-
diction in such a case and dismiss it—that is, to act as if the Court never
had jurisdiction in such cases. Chase notes, though, that the 1868 law
only applies to habeas corpus cases appealed from the federal circuit courts
to the High Court; presumably, habeas corpus cases coming directly from
a federal district court would in fact fall within the Supreme Court’s
appellate jurisdiction.
Rasul v. Bush, 542 U.S. 507 (2004)

Facts: After the Al Qaeda attack on the World Trade Center and the
Pentagon on September 11, 2001, Congress passed a joint resolution
known as the Authorization for Use of Military Force. It empowered
the president to use “all necessary and appropriate force against those
nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks … or harbored such organiza-
tions or persons.” President George W. Bush then sent America’s military
to Afghanistan to battle Al Qaeda and its supportive Taliban govern-
ment. During the fighting twelve citizens of Kuwait and two citizens
of Australia were captured and later imprisoned at the American naval
base at Guantanamo Bay, Cuba, as prisoners of war and enemy combat-
ants. Guantanamo had been leased from Cuba after the Spanish-American
War but remained the sovereign territory of Cuba. The foreign nationals
captured in Afghanistan were to be held at Guantanamo for an indefinite
time. They did not have access to lawyers, and formal charges were not
filed against them. They requested writs of habeas corpus from the federal
district court in the District of Columbia, insisting they be given access
to legal counsel and an independent judge and that they be released.
The district court dismissed their request based on the Supreme Court’s
ruling in Johnson v. Eisentrager (1950). That case declared that aliens held
outside the sovereign territory of the United States did not have the right
to petition a federal court for a writ of habeas corpus . After losing in the
lower courts, appellants petitioned the Supreme Court, which granted
certiorari.
Issue: In light of 28 U.S.C. Section 2241(a) and Johnson v. Eisen-
trager, do federal courts have jurisdiction in cases involving habeas corpus
requests from aliens detained by the president in a territory over which the
United States exercises plenary and exclusive jurisdiction but not ultimate
sovereignty?
Decision: Yes
Vote: 6–3
Majority Opinion: Justice Stevens explains that Congress long ago gave
the federal district courts the power to hear habeas corpus requests from
persons saying they were held in violation of federal law. The right of
habeas corpus in America can be traced back to the Judiciary Act of 1789
and, before that, to English common law. It is a right provided for by
28 U.S.C. Section 2241(a) and has been recognized in various Supreme
Court decisions. Article I, Section 9, Clause 2 of the Constitution also
prohibits the suspension of “The Privilege of the Writ of Habeas Corpus
… unless when in Cases of Rebellion or Invasion the public Safety may
require it.”
Stevens poses the jurisdictional issue in the case in the following terms:
“whether the habeas statute confers a right to judicial review of the
legality of Executive detention of aliens in a territory over which the
United States exercises plenary and exclusive jurisdiction but not ‘ulti-
mate sovereignty.’” The Bush administration relied on Eisentrager, but
the Court distinguishes the detainees in that case from those in Rasul.
The detainees in Rasul “are not nationals of countries at war with the
United States, and they deny that they have engaged in or plotted acts
of aggression against the United States; they have never been afforded
access to any tribunal, much less charged with and convicted of wrong-
doing; and for more than two years they have been imprisoned in territory
over which the United States exercises exclusive jurisdiction and control.”
Additionally, the Court in Eisentrager delved into the constitutional
basis for the right of habeas corpus , not its statutory basis. Yet since then,
Stevens argues, the Court has “filled the statutory gap” so that aliens do
not have to rely on the Constitution as the grounds for their habeas corpus
claims. Statutory law now provides a basis for habeas claims by aliens. The
majority relies on statutory law, not the Constitution, in reaching its deci-
sion and says that the federal district court has jurisdiction in this case.
“What is presently at stake is only whether the federal courts have juris-
diction to determine the legality of the Executive’s potentially indefinite
detention of individuals who claim to be wholly innocent of wrongdoing.
Answering the question in the affirmative, we reverse the judgment of
the Court of Appeals and remand for the District Court to consider in
the first instance the merits of petitioners’ claims.”
Concurring Opinion: Justice Kennedy agrees that the federal courts
have jurisdiction in this case but would “follow the framework of Eisen-
trager.” “The decision in Eisentrager indicates that there is a realm of
political authority over military affairs where the judicial power may not
enter. The existence of this realm acknowledges the power of the Presi-
dent as Commander in Chief, and the joint role of the President and the
Congress in the conduct of military affairs.”
Dissenting Opinion: Justice Scalia complains that the majority’s deci-
sion is “an irresponsible overturning of settled law in a matter of extreme
importance to our forces currently in the field.”
Justiciability
Baker v. Carr, 369 U.S. 186 (1962)
Facts: In the early 1960s Tennessee’s state legislature had not been reap-
portioned since 1901, so rural areas of the state were overrepresented
relative to urban areas. Charles Baker, a Tennessee citizen, sued state
officials, claiming that he was denied equal protection under the Four-
teenth Amendment because he was an underrepresented urban resident.
The district court said that it could provide no remedy because the issue
was nonjusticiable. It relied on Colegrove v. Green (1946), where the
Supreme Court declared that congressional districts in Illinois did not
raise a justiciable issue—that, instead, they presented a political question.
Issue: In light of Article III, is the malapportionment of state legislative
districts a nonjusticiable political question that the Supreme Court should
decline to decide?
Decision: No
Vote: 6–2
Majority Opinion: Justice Brennan suggests that the district court
misconstrued Colegrove v. Green. After all, Colegrove dealt with federal—
not state—legislative redistricting. In reaching this conclusion, Brennan
makes two vital points about justiciability and political questions. First,
because a case deals with a political right does not mean that it presents a
political question. Second, reapportionment cases may raise equal protec-
tion questions under the Fourteenth Amendment, which are not political
questions.
Because confusion existed in the lower courts over what constituted a
political question, Brennan tries to clarify it by reviewing relevant prece-
dents. He concludes that cases raising issues of foreign relations, the
recognition of Indian tribes, and what constitutes a republican form of
government are all typically political questions because they concern sepa-
ration of powers and the fact that the courts need to defer to Congress
and the president on certain matters. As Brennan indicates, “the nonjus-

ticiability of a political question is primarily a function of the separation
of powers.” Political questions deal with the relationship between the
federal courts and the two coordinate branches of the federal government,
not with the federal courts’ relationship with the states. Consequently,
a political question is most likely to deal with the principle of separa-
tion of powers and not with the principle of federalism. Brennan adds
that it is “a delicate exercise in constitutional interpretation” when federal
courts decide “whether a matter has … been committed by the Consti-
tution to another branch of government, or whether the action of that
branch exceeds whatever authority” it is given by the Constitution. He
seems to say that because this is a “delicate exercise in constitutional
interpretation,” the federal courts should tread very softly in this area.
Brennan sees no characteristics of a political question in Baker v.
Carr, which deals with matters of federalism, not separation of powers:
“The question here is the consistency of state action [under the Four-
teenth Amendment] with the Federal Constitution. We have no question
decided, or to be decided, by a political branch of government co-equal
with this court.”
Dissenting Opinions: Justice Frankfurter maintains that the Court is
handing down an activist decision that is contrary to the proper, more
restrained role it should play as a major institution in the American system
of separated powers. Why? Because the majority is addressing a political
question between different political forces in the state of Tennessee. If
the Court hands down judgments like this, Frankfurter complains, it is
going beyond its constitutional authority. By deciding “political entan-
glements,” it reduces the legitimacy of the Court in the public’s eyes,
and the Court will ultimately be drawn into a “mathematical quagmire,”
trying to determine how closely various legislative bodies must be reap-
portioned. In Frankfurter’s words, “the Court’s authority—possessed of
neither the purse nor the sword—ultimately rests on sustained public
confidence in its moral sanction. Such feeling must be nourished by the
Court’s complete detachment, in fact and in appearance, from political
entanglements and by abstention from injecting itself into the clash of
political forces in political settlements.”
Justice Harlan dissents as well. He writes that the majority “strikes
deep at the heart of our federal system. Its acceptance would require us
to turn our backs on the regard which this Court has always shown for
the judgment of state legislatures and courts on matters of basically local
concern.” This, Harlan insists, is an internal state political conflict into

which the national courts should not intervene.
Goldwater v. Carter, 444 U.S. 996 (1979)

Facts: Barry Goldwater and other members of the U.S. Senate sued Pres-
ident Jimmy Carter for terminating a 1955 defense treaty with Taiwan.
Carter wanted to recognize the People’s Republic of China as the sole
government of that nation, but Goldwater and other conservatives still
firmly backed Taiwan as China’s government. Goldwater claimed that a
president could not cancel a treaty with another country without a two-
thirds vote in the Senate because that was the vote required to authorize
the treaty initially. The Court of Appeals upheld Carter’s power to revoke
the treaty, and the Supreme Court granted certiorari.
Issue: In light of Article III, may a federal court resolve a dispute
between members of the U.S. Senate and the president involving the
abrogation of a treaty?
Decision: No
Vote: 8–1
Majority: Eight justices agree that Goldwater’s suit was unfit for judi-
cial resolution but disagree over the reasons why. The Court of Appeals
ruling is vacated, and the case is remanded to the District Court.
Concurring Opinions: Justice Powell believes that Goldwater’s
complaint was not ripe for judicial review and that the Senate should vote
to reject Carter’s actions before members of the Senate file suit. Powell
does not feel that the case presents a political question, but Justice Rehn-
quist insists that the issue is nonjusticiable. Rehnquist maintains that a
political question is presented because the case “involves the authority of
the President in the conduct of our country’s foreign relations and the
extent to which the Senate or the Congress is authorized to negate the
action of the President.” According to Rehnquist, Congress and the pres-
ident should resolve this issue, not bring it to the courts, especially as it
deals with foreign relations, which are outside the scope of judicial power.
Dissenting Opinion: Justice Brennan concludes that this case does not
present a political question, and he would decide it on the merits in favor
of the president.
Standing to Sue
Flast v. Cohen, 392 U.S. 83 (1968)
Facts: Florance Flast, a taxpayer, filed suit to contest the Elementary and
Secondary Education Act of 1965, which provided financial assistance to
religious schools for teaching secular courses and purchasing instructional
materials. Flast’s suit claimed this assistance violated the Establishment
and Free Exercise Clauses of the First Amendment. The district court
said that Flast lacked standing under the Supreme Court’s ruling in Froth-
ingham v. Mellon (1923), which had been interpreted as blocking judicial
review by a taxpayer of national spending legislation. The Supreme Court
granted certiorari.
Issue: In light of the Taxing and Spending Clause of Article I,
Section 8, Clause 1, and the Establishment and Freedom of Religion
Clauses of the First Amendment, does a taxpayer have standing to chal-
lenge a federal statute as violating constitutional provisions that restrict
Congress’s taxing and spending powers?
Decision: Yes
Vote: 8–1
Majority Opinion: Chief Justice Warren recounts the Frothingham case,
where the Court ruled that Ms. Frothingham suffered no direct injury
from a funding program under the Maternity Act of 1921. Frothingham
had caused confusion as reflected in the two opposing arguments in
Flast: the government argued that Frothingham prohibited all taxpayer
suits against the federal government, and Ms. Flast claimed that Froth-
ingham stood only for the notion that the courts should exercise restraint
in taxpayer suits unless a compelling constitutional reason indicated
otherwise.
After discussing the concepts of jurisdiction and justiciability, Warren
speaks to the concept of standing. Standing is an aspect of justiciability.
To be granted standing, a plaintiff—the individual bringing suit—must
have a personal stake in the outcome of a controversy and adverse parties
must be involved. This ensures that a proper party is requesting a court
to decide an issue. If the court denies standing, it is saying the petitioner
is not a proper party.
Whether the taxpayer has standing should be determined by a logical
nexus test, according to Warren, which has two aspects: “First, the
taxpayer must establish a logical link between that status [as a taxpayer]
and the type of legislative enactment attacked. A taxpayer will be a
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the box is fastened at a height of some five or six feet above the
ground, or hung up (but this is not so common) like a swinging bar
on a stand made for the purpose. This last arrangement is
particularly safe, as affording no access to vermin. As the birds
multiply, the owner adds cylinder to cylinder till they form a kind of
wall. Towards sunset, he or his wife approaches the dovecote, greeted
by a friendly cooing from inside, picks up from the ground a piece of
wood cut to the right size, and closes the opening of the first bark box
with it, doing the same to all the others in turn, and then leaves them
for the night, secure that no wild cat or other marauder can reach
them.
DOVECOTE AND GRANARY
I have found out within the last few days why so few men are to be
seen in my rounds. The settlements here scarcely deserve the name
of villages—they are too straggling for that; it is only now and then
that from one hut one can catch a distant glimpse of another. The
view is also obstructed by the fields of manioc, whose branches,
though very spreading, are not easily seen through on account of the
thickly-growing, succulent green foliage. This and the bazi pea are,
now that the maize and millet have been gathered in, the only crops
left standing in the fields. Thus it may happen that one has to trust
entirely to the trodden paths leading from one hut to another, to be
sure of missing none, or to the guidance of the sounds inseparable
from every human settlement. There is no lack of such noises at
Masasi, and in fact I follow them almost every day. Walking about
the country with Nils Knudsen, I hear what sounds like a jovial
company over their morning drink—voices becoming louder and
louder, and shouting all together regardless of parliamentary rules. A
sudden turn of the path brings us face to face with a drinking-party,
and a very merry one, indeed, to judge by the humour of the guests
and the number and dimensions of the pombe pots which have been
wholly or partially emptied. The silence which follows our
appearance is like that produced by a stone thrown into a pool where
frogs are croaking. Only when we ask, “Pombe nzuri?” (“Is the beer
good?”) a chorus of hoarse throats shouts back the answer—“Nzuri
kabisa, bwana!” (“Very good indeed, sir!”)
As to this pombe—well, we Germans fail to appreciate our
privileges till we have ungratefully turned our backs on our own
country. At Mtua, our second camp out from Lindi, a huge earthen
jar of the East African brew was brought as a respectful offering to us
three Europeans. At that time I failed to appreciate the dirty-looking
drab liquid; not so our men, who finished up the six gallons or so in a
twinkling. In Masasi, again, the wife of the Nyasa chief Masekera
Matola—an extremely nice, middle-aged woman—insisted on
sending Knudsen and me a similar gigantic jar soon after our arrival.
We felt that it was out of the question to refuse or throw away the
gift, and so prepared for the ordeal with grim determination. First I
dipped one of my two tumblers into the turbid mass, and brought it
up filled with a liquid in colour not unlike our Lichtenhain beer, but
of a very different consistency. A compact mass of meal filled the
glass almost to the top, leaving about a finger’s breadth of real, clear
“Lichtenhainer.” “This will never do!” I growled, and shouted to
Kibwana for a clean handkerchief. He produced one, after a
seemingly endless search, but my attempts to use it as a filter were
fruitless—not a drop would run through. “No use, the stuff is too
closely woven. Lete sanda, Kibwana” (“Bring a piece of the shroud!”)
This order sounds startling enough, but does not denote any
exceptional callousness on my part. Sanda is the Swahili name for
the cheap, unbleached and highly-dressed calico (also called bafta)
which, as a matter of fact, is generally used by the natives to wrap a
corpse for burial. The material is consequently much in demand, and
travellers into the interior will do well to carry a bale of it with them.
When the dressing is washed out, it is little better than a network of
threads, and might fairly be expected to serve the purpose of a filter.
I found, however, that I could not strain the pombe through it—a
few scanty drops ran down and that was all. After trying my tea and
coffee-strainers, equally in vain, I gave up in despair, and drank the
stuff as it stood. I found that it had a slight taste of flour, but was
otherwise not by any means bad, and indeed quite reminiscent of my
student days at Jena—in fact, I think I could get used to it in time.
The men of Masasi seem to have got only too well used to it. I am far
from grudging the worthy elders their social glass after the hard work
of the harvest, but it is very hard that my studies should suffer from
this perpetual conviviality. It is impossible to drum up any
considerable number of men to be cross-examined on their tribal
affinities, usages and customs. Moreover, the few who can reconcile
it with their engagements and inclinations to separate themselves for
a time from their itinerant drinking-bouts are not disposed to be very
particular about the truth. Even when, the other day, I sent for a
band of these jolly topers to show me their methods of
basketmaking, the result was very unsatisfactory—they did some
plaiting in my presence, but they were quite incapable of giving in
detail the native names of their materials and implements—the
morning drink had been too copious.
It is well known that it is the custom of most, if not all, African
tribes to make a part of their supply of cereals into beer after an
abundant harvest, and consume it wholesale in this form. This, more
than anything else, has probably given rise to the opinion that the
native always wastes his substance in time of plenty, and is nearly
starved afterwards in consequence. It is true that our black friends
cannot be pronounced free from a certain degree of “divine
carelessness”—a touch, to call it no more, of Micawberism—but it
would not be fair to condemn them on the strength of a single
indication. I have already laid stress on the difficulty which the
native cultivator has of storing his seed-corn through the winter. It
would be still more difficult to preserve the much greater quantities
of foodstuffs gathered in at the harvest in a condition fit for use
through some eight or nine months. That he tries to do so is seen by
the numerous granaries surrounding every homestead of any
importance, but that he does not invariably succeed, and therefore
prefers to dispose of that part of his crops which would otherwise be
wasted in a manner combining the useful and the agreeable, is
proved by the morning and evening beer-drinks already referred to,
which, with all their loud merriment, are harmless enough. They
differ, by the bye, from the drinking in European public-houses, in
that they are held at each man’s house in turn, so that every one is
host on one occasion and guest on another—a highly satisfactory
arrangement on the whole.
My difficulties are due to other causes besides the chronically
bemused state of the men. In the first place, there are the troubles
connected with photography. In Europe the amateur is only too
thankful for bright sunshine, and even should the light be a little
more powerful than necessary, there is plenty of shade to be had
from trees and houses. In Africa we have nothing of the sort—the
trees are neither high nor shady, the bushes are not green, and the
houses are never more than twelve feet high at the ridge-pole. To this
is added the sun’s position in the sky at a height which affects one
with a sense of uncanniness, from nine in the morning till after three
in the afternoon, and an intensity of light which is best appreciated
by trying to match the skins of the natives against the colours in Von
Luschan’s scale. No medium between glittering light and deep black
shadow—how is one, under such circumstances, to produce artistic
plates full of atmosphere and feeling?
For a dark-room I have been trying to use the Masasi boma. This is
the only stone building in the whole district and has been
constructed for storing food so as to prevent the recurrence of famine
among the natives, and, still more, to make the garrison independent
of outside supplies in the event of another rising. It has only one
story, but the walls are solidly built, with mere loopholes for
windows; and the flat roof of beaten clay is very strong. In this
marvel of architecture are already stacked uncounted bags
containing millet from the new crop, and mountains of raw cotton. I
have made use of both these products, stopping all crevices with the
cotton, and taking the bags of grain to sit on, and also as a support
for my table, hitherto the essential part of a cotton-press which
stands forsaken in the compound, mourning over the shipwreck it
has made of its existence. Finally, I have closed the door with a
combination of thick straw mats made by my carriers, and some
blankets from my bed. In this way, I can develop at a pinch even in
the daytime, but, after working a short time in this apartment, the
atmosphere becomes so stifling that I am glad to escape from it to
another form of activity.
On one of my first strolls here, I came upon
a neat structure which was explained to me as
“tego ya ngunda”—a trap for pigeons. This is
a system of sticks and thin strings, one of
which is fastened to a strong branch bent over
into a half-circle. I have been, from my youth
up, interested in all mechanical contrivances,
and am still more so in a case like this, where
we have an opportunity of gaining an insight
into the earlier evolutional stages of the
RAT TRAP human intellect. I therefore, on my return to
camp, called together all my men and as many
local natives as possible, and addressed the assembly to the effect
that the mzungu was exceedingly anxious to possess all kinds of
traps for all kinds of animals. Then followed the promise of good
prices for good and authentic specimens, and the oration wound up
with “Nendeni na tengenezeni sasa!” (“Now go away and make up
your contraptions!”).
How they hurried off that day, and how eagerly all my men have
been at work ever since! I had hitherto believed all my carriers to be
Wanyamwezi—now I find, through the commentaries which each of
them has to supply with his work, that my thirty men represent a
number of different tribes. Most of them, to be sure, are
Wanyamwezi, but along with them there are some Wasukuma and
Manyema, and even a genuine Mngoni from Runsewe, a
representative of that gallant Zulu tribe who, some decades ago,
penetrated from distant South Africa to the present German
territory, and pushed forward one of its groups—these very Runsewe
Wangoni—as far as the south-western corner of the Victoria Nyanza.
As for the askari, though numbering only thirteen, they belong to no
fewer than twelve different tribes, from those of far Darfur in the
Egyptian Sudan to the Yao in Portuguese East Africa. All these
“faithfuls” have been racking their brains to recall and practise once
more in wood and field the arts of their boyhood, and now they come
and set up, in the open, sunny space beside my palatial abode, the
results of their unwonted intellectual exertions.
The typical cultivator is not credited in literature with much skill
as a hunter and trapper; his modicum of intellect is supposed to be
entirely absorbed by the care of his fields, and none but tribes of the
stamp of the Bushmen, the Pygmies and the Australian aborigines
are assumed by our theoretic wisdom to be capable of dexterously
killing game in forest or steppe, or taking it by skilful stratagem in a
cunningly devised trap. And yet how wide of the mark is this opinion
of the schools! Among the tribes of the district I am studying, the
Makua are counted as good hunters, while at the same time they are
like the rest, in the main, typical hoe-cultivators—i.e., people who,
year after year, keep on tilling, with the primitive hoe, the ground
painfully brought under cultivation. In spite of their agricultural
habits their traps are constructed with wonderful ingenuity. The
form and action of these traps is sufficiently evident from the
accompanying sketches; but in case any reader should be entirely
without the faculty of “technical sight,” I may add for his benefit that
all these murderous implements depend on the same principle.
Those intended for quadrupeds are so arranged that the animal in
walking or running forward strikes against a fine net with his muzzle,
or a thin cord with his foot. The net or the string is thereby pressed
forward, the upper edge of the former glides downwards, but the end
of the string moves a little to one side. In either case this movement
sets free the end of a lever—a small stick which has hitherto, in a way
sufficiently clear from the sketch—kept the trap set. It slips
instantaneously round its support, and in so doing releases the
tension of the tree or bent stick acting as a spring, which in its
upward recoil draws a skilfully fixed noose tight round the neck of
the animal, which is then strangled to death. Traps of similar
construction, but still more cruel, are set for rats and the like, and,
unfortunately, equal cunning and skill are applied to the pursuit of
birds. Perhaps I shall find another opportunity of discussing this side
of native life; it certainly deserves attention, for there is scarcely any
department where the faculty of invention to be found in even the
primitive mind is so clearly shown as in this aspect of the struggle for
existence.
TRAP FOR ANTELOPES
Of psychological interest is the behaviour of the natives in face of

my own activity in this part of my task. When, we two Europeans
having finished our frugal dinner, Nils Knudsen has laid himself
down for his well-deserved siesta, and the snoring of my warriors
resounds, more rhythmically than harmoniously from the
neighbouring baraza, I sit in the blazing sun, like the shadowless
Schlemihl, only slightly protected by the larger of my two helmets,
sketching.
TRAP FOR GUINEA-FOWL

TRAP FOR LARGE GAME
The ability to make a rapid and accurate sketch of any object in a

few strokes is one whose value to the scientific explorer cannot be
overrated. Photography is certainly a wonderful invention, but in the
details of research-work carried on day by day, it is apt to fail one
oftener than might be expected, and that not merely in the darkness
of hut-interiors, but over and over again by daylight in the open air.
I am sitting sketching, then. Not a breath of air is stirring—all
nature seems asleep. My pen, too, is growing tired, when I hear a
noise immediately behind me. A hasty glance shows me that the
momentum of universal human curiosity has overcome even the
primæval force of negroid laziness. It is the whole band of my
carriers, accompanied by a few people belonging to the place. They
must have come up very softly, as they might easily do with their
bare feet on the soft, sandy soil. Presently the whole crowd is looking
over my shoulder in the greatest excitement. I do not let them
disturb me; stroke follows stroke, the work nears completion,—at last
it is finished. “Sawasawa?” (“Is it like?”) I ask eagerly, and the
answering chorus of “Ndio” (“Yes”) is shouted into my ears with an
enthusiasm which threatens to burst the tympanum. “Kizuri?” (“Is it
fine?”) “Kizuri sana kabisa” (“Very fine, indeed”), they yell back still
more loudly and enthusiastically; “Wewe fundi” (“You are a master-
craftsman”). These flattering critics are my artists who, having
practised themselves, may be supposed to know what they are
talking about; the few washenzi, unlettered barbarians, unkissed of
the Muse, have only joined in the chorus from gregarious instinct,
mere cattle that they are.
Now comes the attempt at a practical application. I rise from my
camp-stool, take up an oratorical attitude and inform my disciples in
art that, as they have now seen how I, the fundi, set about drawing a
trap, it would be advisable for them to attempt a more difficult
subject, such as this. It is dull work to keep on drawing their friends,
or trees, houses, and animals; and they are such clever fellows that a
bird-trap must surely be well within their powers. I have already
mentioned the look of embarrassed perplexity which I encountered
when beginning my studies at Lindi. Here it was even more marked
and more general. It produced a definite impression that the idea of
what we call perspective for the first time became clear to the men’s
minds. They were evidently trying to express something of the sort
by their words and gestures to each other; they followed with their
fingers the strangely foreshortened curves which in reality stood for
circles—in short, they were in presence of something new—
something unknown and unimagined, which on the one hand made
them conscious of their intellectual and artistic inferiority, and on
the other drew them like a magnet to my sketch-book. None of them
has up to the present attempted to draw one of these traps.
Travellers of former days, or in lands less satisfactorily explored
than German East Africa, found the difficulties of barter not the least
of their troubles. Stanley, not so many years ago, set out on his
explorations with hundreds of bales of various stuffs and
innumerable kinds of beads, and even thus it was not certain
whether the natives of the particular region traversed would be
suited; not to mention the way in which this primitive currency
increased the number of carriers required by every expedition. In
German East Africa, where the Colonial Administration has so often
been unjustly attacked, the white man can now travel almost as
easily as at home. His letter of credit, indeed, only holds good as far
as the coast, but if his errand is, like mine, of an official character,
every station, and even every smaller post, with any Government
funds at its disposal, has orders to give the traveller credit, on his
complying with certain simple formalities, and to provide him with
cash. The explanation is not difficult: the fact that our rupees are
current on the coast compels all the interior tribes to adopt them,
whether they like it or not. I brought with me from Lindi a couple of
large sacks with rupees, half and quarter rupees, and for immediate
needs a few cases of heller.[16] This copper coin, long obsolete in
Germany, has been coined for circulation in our colony, but the
natives have not been induced to adopt it, and reckon as before by
pice—an egg costs one pice (pesa) and that is enough—no one thinks
of working out the price in hellers. Neither is the coin popular with
the white residents, who deride its introduction and make feeble
puns on its name—one of the poorest being based on the name of the
present Director of Customs, which happens to be identical with it.
I find, however, that the natives are by no means averse to
accepting these despised coins when they get the chance. On our
tramps through the villages, Moritz with the lantern is followed by
Mambo sasa, the Mngoni, carrying on his woolly head a large jar of
bright copper coin newly minted at Berlin.
After a long, but not tedious examination of all the apartments in
the native palaces, I return to the light of day, dazzled by the tropical
sunshine. With sympathetic chuckles, my bodyguard—those of my
men who are always with me and have quickly grasped, with the
sympathetic intuition peculiar to the native, what it is that I want—
follow, dragging with them a heap of miscellaneous property. Lastly
come the master of the house and his wife, in a state of mingled
expectation and doubt. Now begins the bargaining, in its essentials
not very different from that experienced in the harbours of Naples,
Port Said, Aden and Mombasa. “Kiasi gani?” (“What is the price?”)
one asks with ostentatious nonchalance, including the whole pile in a
compendious wave of the hand. The fortunate owner of the valuables
apparently fails to understand this, so he opens his mouth wide and
says nothing. I must try him on another tack. I hold up some article
before his eyes and ask, “Nini hii?” (“What is this?”), which proves
quite effectual. My next duty is to imagine myself back again in the
lecture-hall during my first term at college, and to write down with
the utmost diligence the words, not of a learned professor, but of a
raw, unlettered mshenzi. By the time I have learnt everything I want
to know, the name, the purpose, the mode of manufacture and the
way in which the thing is used, the native is at last able and willing to
fix the retail price. Up to the present, I have met with two extremes:
one class of sellers demand whole rupees, Rupia tatu (three) or
Rupia nne (four), quite regardless of the nature of the article for sale
—the other, with equal consistency, a sumni as uniform price. This is
a quarter-rupee—in the currency of German East Africa an
exceedingly attractive-looking silver coin, a little smaller than our
half-mark piece or an English sixpence. Possibly it is its handiness,
together with the untarnished lustre of my newly-minted specimens
in particular, which accounts for this preference. One thing must be
mentioned which distinguishes these people very favourably from
the bandits of the ports already mentioned. None of them raises an
outcry on being offered the tenth or twentieth part of what he asks.
With perfect calm he either gradually abates his demands till a fair
agreement is reached, or else he says, at the first offer, “Lete” (“Hand
it over”). At this moment Moritz and my jar of coppers come to the
front of the stage. The boy has quickly lifted the vessel down from the
head of his friend Mambo sasa. With the eye of a connoisseur he
grasps the state of our finances and then pays with the dignity, if not
the rapidity, of the cashier at a metropolitan bank. The remaining
articles are bargained for in much the same way. It takes more time
than I like; but this is not to be avoided.
When the purchase of the last piece is completed, my carriers, with
the amazing deftness I have so often admired, have packed up the
spoil, in the turn of a hand, in large and compact bundles. A
searching look round for photographic subjects, another last glance
at the house-owner chuckling to himself over his newly-acquired
wealth, and then a vigorous “Kwa heri” (“Good-bye”), and lantern
and jar go their way. We had only just settled into our house here
when we received a visit from the chief’s son, Salim Matola, a very
tall and excessively slender youth of seventeen or eighteen,
magnificently clad in a European waistcoat, and very friendly. Since
then he has scarcely left my side; he knows everything, can do
everything, finds everything, and, to my delight, brings me
everything. He makes the best traps, shows me with what diabolical
ingenuity his countrymen set limed twigs, plays on all instruments
like a master, and produces fire by drilling so quickly that one is
astonished at the strength in his slight frame. In a word, he is a
treasure to the ethnographer.
One thing only seems to be unknown to my young friend, and that
is work. His father, Masekera Matola, already mentioned, has a very
spacious group of huts and extensive gardens. Whether the old
gentleman ever does any perceptible work on this property with his
own hands, I am not in a position to judge, as he is for the present
most strenuously occupied in consuming beer; but at every visit, I
have noticed the women of the family working hard to get in the last
of the crops. The young prince alone seems to be above every
plebeian employment. His hands certainly do not look horny, and his
muscles leave much to be desired. He strolls through life in his
leisurely way with glad heart and cheerful spirit.
MY CARAVAN ON THE MARCH. DRAWN BY PESA MBILI
CHAPTER VII
MY CARAVAN ON THE SOUTHWARD
MARCH
Chingulungulu, beginning of August, 1906.
It is not very easy to locate my present abode on the map. Masasi and
its exact latitude and longitude have been known to me for years, but
of this strangely named place,[17] where I drove in my tent-pegs a few
days ago, I never even heard before I had entered the area of the
inland tribes.
One trait is common to all Oriental towns, their beauty at a
distance and the disillusionment in store for those who set foot
within their walls. Knudsen has done nothing but rave about
Chingulungulu ever since we reached Masasi. He declared that its
baraza was the highest achievement of East African architecture,
that it had a plentiful supply of delicious water, abundance of all
kinds of meat, and unequalled fruit and vegetables. He extolled its
population, exclusively composed, according to him, of high-bred
gentlemen and good-looking women, and its well-built, spacious
houses. Finally, its situation, he said, made it a convenient centre for
excursions in all directions over the plain. I have been here too short
a time to bring all the details of this highly coloured picture to the
test of actual fact, but this much I have already ascertained, that
neither place nor people are quite so paradisaical as the enthusiastic
Nils would have me believe.
YAO HOMESTEAD AT CHINGULUNGULU
To relate my experiences in their proper order, I must, however, go

back to our departure from Masasi which, owing to a variety of
unfortunate circumstances, took place earlier than originally
planned. To begin with, there was the changed attitude of the
inhabitants, who at first, as already stated, showed the greatest
amiability, and allowed us, in the most obliging way, to inspect their
homes and buy their household furnishings. In my later sketching
and collecting expeditions, I came everywhere upon closed doors and
apparently deserted compounds. This phenomenon, too, comes
under the heading of racial psychology. However much he may profit
by the foreigner’s visits, the African prefers to have his own hut to
himself.[18]
In the second place, we began, in the course of a prolonged
residence, to discover the drawbacks of our quarters in the rest-
house. Knudsen, who is very sensitive in this respect, insisted that it
was damp, and we soon found that the subsoil water, which indeed
reached the surface as a large spring on the hillside a little below the
house, was unpleasantly close to our floor. Even on the march up
from the coast, Knudsen had suffered from occasional attacks of
fever. These now became so frequent and severe that he was scarcely
fit for work. His faithful old servant, Ali, nursed him with the most
touching devotion, and never left his bedside night or day.
I had myself on various occasions noticed a curious irritation of
the scalp, for which I could discover no cause, in spite of repeated
examination. One day, while hastening across from the dark-room to
the rest-house, with some wet plates in my hand, I was conscious of
intense discomfort among my scanty locks, and called out to Moritz
to take off my hat and look if there was anything inside it. He obeyed,
inspected the hat carefully inside and out, and, on pursuing his
researches under the lining, turned grey in the face, and ejaculated
with evident horror, “Wadudu wabaya!”[19] The case becoming
interesting, I put my plates down and instituted a minute
investigation into Moritz’s find, which proved to consist of a number
of assorted animalcules, with a sprinkling of larger creatures
resembling ticks. This was somewhat startling. I had come to Africa
with a mind entirely at ease as regards malaria—I swear by Koch and
fear nothing. But remittent fever is another matter. In Dar es Salam I
had heard enough and to spare about this latest discovery of the
great Berlin bacteriologist, and how it is produced by an
inconspicuous tick-like insect which burrows in the soil of all sites
occupied for any length of time by natives. The mosquito-net, I was
told, is a sufficient protection against the full grown papasi, as they
are called, but not against their hopeful progeny, which can slip
unhindered through the finest mesh. This particular kind of fever,
moreover, was said to be most especially trying—you were never
seriously ill, and yet never really well, or fit for work; and nothing,
not even quinine, would avail to keep the attacks from recurring
every few days. Small wonder if, at the sight of these wadudu
wabaya in the shape of ticks, I too turned pale at the thought of the
ignoble end possibly awaiting my enterprise before it was well begun.
I had already found out that Masasi was not precisely an abode of
all the virtues, and that an appreciable percentage of the soldiers
forming the garrison at the boma were suffering from venereal
diseases; but the incident which precipitated our departure was the
following. The akida, or local headman (a former sergeant in the
Field Force), was the owner of a small herd of cattle, and with the
good-nature which is one of the most striking traits in the African
character, earned my warmest gratitude by sending me a small jar of
milk every day. After a time we heard, and the rumour gained in
definiteness with each repetition, that the akida was a leper. I could
not refuse the milk, which continued to arrive regularly, and came in
very handy for fixing my pencil drawings.
In their totality the evils enumerated may
not signify more than a succession of pin-
pricks; but even such trifling interferences
with human well-being may in the end
appreciably diminish one’s enjoyment of life.
With the attractions of Chingulungulu as an
additional inducement, it was not surprising
that only a day or two intervened between the
first suggestion that we should migrate
southward and our actual departure. With
their usual monkeylike agility, my carriers one
evening packed a large heap of specimens in
convenient loads, and as quickly the order was
given to Saleh, the corporal in command of
the askari, and Pesa mbili, the leader of the
porters, “Safari to-morrow at six!”
THE YAO CHIEF
MATOLA Next to Matola, the Yao chief of
Chingulungulu, no man in the country is
oftener in men’s mouths than his illustrious
colleague and fellow tribesman, Nakaam, of Chiwata in the north-
western part of the Makonde plateau. The Europeans on the coast
are not agreed as to which of these two chiefs is the more powerful.
In the interior, however, Matola seems to be far more looked up to by
the natives than the chief of Chiwata. Nevertheless, I thought it
absolutely necessary to visit the latter and his people. My plans are
not based on any fixed line of march, but were expressly arranged so
that I should be able to take whatever route circumstances might
render most convenient.
I must confess that my stay at Masasi has turned out a
disappointment as regards the customs, habits and ideas of the
natives, though I have gained a very fair insight into the outward,
material details of their life. But here too, Nils Knudsen is ready with
consolation and encouragement. “What can you expect, Professor?
the people here are a terribly mixed lot, after all, and have lost all
their own traditions and customs. Don’t waste any more time in this
wretched hole of a Masasi, but come to Chingulungulu; you have no
idea what a fine place that is!”
We marched at daybreak on July 31. The
road through the Masasi district, as already
mentioned, skirts the great chain of insular
mountains on the east, passing, at a sufficient
height to afford an extensive view to the east
and south, over an escarpment formed by the
products of aerial denudation from the gneiss
peaks. Did I say the plain? it is an ocean that
we see spread out before our eyes, a white,
boundless expanse, studded with islands, here
one, there another, and yonder, on the misty
horizon, whole archipelagoes. This wonderful
spectacle, passing away all too quickly as the
sun climbs higher—the peaks rising like
islands from the sea of the morning mist,
while our caravan trails its length along the
shore—pictures for us as in a mirror the
aspect it presented in those distant ages when
the blue waves of the primæval ocean rolled
where now the blue smoke of lowly huts NAKAAM, A YAO
CHIEF
ascends to the heavens.
The goal of our first day’s march was Mwiti,
where, to judge from the importance given to it on the map, I
expected a large native settlement. Not far from the Masasi Mission
station, the road to Mwiti branches off from the Coast road on the
right. I order a halt; the column opens out; I shout into the fresh
morning air “Wapagazi kwa Lindi!” (“the carriers for Lindi!”); and
the oldest and also the tallest of my porters, a Mnyamwezi of
pronounced Masai type, strides up with a heavy, swaying motion like
a camel.
INTERIOR OF A COMPOUND AT MWITI
His name, Kofia tule, was at first a puzzle to me. I knew that kofia
means a cap, but, curiously enough it never occurred to me to look
up tule (which, moreover, I assumed to be a Nyamwezi word) in the
dictionary. That it was supposed to involve a joke of some sort, I
gathered from the general laughter, whenever I asked its meaning. At
last we arrived at the fact that kofia tule means a small, flat cap—in
itself a ridiculous name for a man, but doubly so applied to this black
super-man with the incredibly vacant face.
Kofia tule, then, comes slowly forward, followed by six more
Wanyamwezi, and some local men whom I have engaged as extra
carriers. With him as their mnyampara they are to take my
collections down to the Coast, and get them stored till my return in
the cellars of the District Commissioner’s office at Lindi. The final
instructions are delivered, and then comes the order, “You here, go
to the left,—we are going to the right. March!” Our company takes
some time to get into proper marching order, but at last everything
goes smoothly. A glance northward over the plain assures us that
Kofia tule and his followers have got up the correct safari speed; and
we plunge into the uninhabited virgin pori.
There is something very monotonous and fatiguing about the
march through these open woods. It is already getting on for noon,
and I am half-asleep on my mule, when I catch sight of two black
figures, gun in hand, peeping cautiously round a clump of bushes in
front. Can they be Wangoni?
For some days past we have heard flying rumours that Shabruma,
the notorious leader of the Wangoni in the late rebellion, and the last
of our opponents remaining unsubdued, is planning an attack on
Nakaam, and therefore threatening this very neighbourhood. Just as
I look round for my gun-bearer, a dozen throats raise the joyful shout
of “Mail-carrier!” This is my first experience of the working of the
German Imperial Post in East Africa; I learnt in due course that,
though by no means remunerative to the department, it is as nearly
perfect as any human institution can be. It sounds like an
exaggeration, but it is absolutely true, to say that all mail matter,
even should it be only a single picture post-card, is delivered to the
addressee without delay, wherever he may be within the postal area.
The native runners, of course, have a very different sort of duty to
perform from the few miles daily required of our home functionaries.
With letters and papers packed in a water-tight envelope of oiled
paper and American cloth, and gun on shoulder, the messenger trots
along, full of the importance of his errand, and covers enormous
distances, sometimes, it is said, double the day’s march of an
ordinary caravan. If the road lies through a district rendered unsafe
by lions, leopards, or human enemies, two men are always sent
together. The black figures rapidly approach us, ground arms with
soldierly precision and report in proper form:—Letters from Lindi
for the Bwana mkubwa and the Bwana mdogo—the great and the
little master. As long as Mr. Ewerbeck was with us, it was not easy for
the natives to establish the correct precedence between us. Since they
ranked me as the new captain, they could not possibly call me
Bwana mdogo. Now, however, there is not the slightest difficulty,—
there are only two Europeans, and I being, not only the elder, but
also the leader of the expedition, there is nothing to complicate the
usual gradation of ranks.

Constitutional Landmarks Supreme Court Decisions On Separation of Powers Federalism and Economic Rights Charles M Lamb Full Chapter

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Constitutional Landmarks Supreme Court Decisions On Separation of Powers Federalism and Economic Rights Charles M Lamb Full Chapter

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Constitutional Landmarks: Supreme

Court Decisions on Separation of

ISBN 978-3-030-55574-0 ISBN 978-3-030-55575-7 (eBook)

The American Constitution creates three branches of government, each

In addition, this book accentuates the importance of the Supreme

• Although there were fluctuations in the number of justices on

basic decision but often for different reasons); or a dissenting opinion

been completed, though naturally we remain solely responsible for any

Buffalo, USA Charles M. Lamb

1 The Supreme Court and Judicial Power 1

2 The Presidency and Presidential Power 49

3 Congress and Congressional Power 109

4 Federalism and Federal-State Relations 181

5 Americans’ Economic Rights 223

Constitutional Landmarks 263

Fig. 1.1 Ideological direction in judicial power cases, 1791–2018 10

Table 1.1 Selected decisions on the Supreme Court and judicial

The Supreme Court and Judicial Power

© The Author(s) 2021 1

Important Legal Concepts

in Baker v. Carr (1962), Goldwater v. Carter (1979), and United States

The Supreme Court as a Political Institution

including most famously North Carolina, proceeded to construct majority

Earl Warren, who was appointed by President Dwight D. Eisenhower

Attitudes, Strategies, and Role Conceptions

Fig. 1.1 Ideological direction in judicial power cases, 1791–2018

scatterplot are a pair of LOWESS curves. LOWESS stands for Locally

the decisions of other branches of government, inject new meanings into

and declare whether the legislation is in accordance with, or in contra-

Chisholm v. Georgia (1793). The Supreme Court’s jurisdiction includes lawsuits by a

Table 1.1 (continued)

in order to guarantee that only white political candidates would win

favored Republican politicians because Republican-controlled state legis-

Republican presidents in this decision that contained an obvious conser-

but simultaneously inflamed feelings of cynicism among those favoring

Of Time, Theory, and Robert McCloskey

Table 1.2 Chief

understanding the Supreme Court than simply referring to the seventeen

constitutional era. However, early on during Chief Justice Harlan Fiske

by Congress null and void because it expands the Court’s original

of the Supreme Court as extending to “all Cases affecting Ambassadors,

Barron v. Baltimore, 1 Peters 243 (1833)

Ex Parte McCardle, 7 Wallace 506 (1869)

Rasul v. Bush, 542 U.S. 507 (2004)

and the president on certain matters. As Brennan indicates, “the nonjus-

concern.” This, Harlan insists, is an internal state political conflict into

Goldwater v. Carter, 444 U.S. 996 (1979)

DOVECOTE AND GRANARY

TRAP FOR ANTELOPES

Of psychological interest is the behaviour of the natives in face of

TRAP FOR GUINEA-FOWL

The ability to make a rapid and accurate sketch of any object in a

Chingulungulu, beginning of August, 1906.

To relate my experiences in their proper order, I must, however, go

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