American Constitutional Law Introductory Essays and Selected Cases 17th Edition Ebook PDF
American Constitutional Law Introductory Essays and Selected Cases 17th Edition Ebook PDF
American Constitutional Law Introductory Essays and Selected Cases 17th Edition Ebook PDF
PREFACE xix
INTRODUCTION
A POLITICAL SUPREME COURT 1
CHAPTER ONE
JURISDICTION AND ORGANIZATION OF THE FEDERAL COURTS 27
CHAPTER TWO
THE CONSTITUTION, THE SUPREME COURT, AND JUDICIAL REVIEW 45
CHAPTER THREE
CONGRESS AND THE PRESIDENT 85
CHAPTER FOUR
FEDERALISM 138
CHAPTER FIVE
THE ELECTORAL PROCESS 176
CHAPTER SIX
THE COMMERCE CLAUSE 223
CHAPTER SEVEN
NATIONAL TAXING AND SPENDING POWER 287
CHAPTER EIGHT
PROPERTY RIGHTS AND THE DEVELOPMENT OF DUE PROCESS 311
vii
viii Brief Contents
CHAPTER NINE
THE BILL OF RIGHTS 364
CHAPTER TEN
CRIMINAL JUSTICE 391
CHAPTER ELEVEN
FREEDOM OF EXPRESSION 466
CHAPTER TWELVE
RELIGIOUS LIBERTY 525
CHAPTER THIRTEEN
PRIVACY 572
CHAPTER FOURTEEN
EQUAL PROTECTION OF THE LAWS 612
CHAPTER FIFTEEN
SECURITY AND FREEDOM IN WARTIME 671
APPENDIX A
THE CONSTITUTION OF THE UNITED STATES OF AMERICA 695
APPENDIX B
JUSTICES OF THE SUPREME COURT 707
APPENDIX C
PRESIDENTS AND JUSTICES 711
APPENDIX D
AMERICAN CONSTITUTIONAL DEVELOPMENT AS REFLECTED IN A CHRONOLOGY
OF CASES REPRINTED IN THIS BOOK 716
GLOSSARY 723
INDEX OF CASES 737
INDEX OF SUBJECTS AND NAMES 747
CONTENTS
PREFACE xix
INTRODUCTION
A POLITICAL SUPREME COURT 1
Constitutional Interpretation and Political Choice 2
A Changing Judiciary 3
Appointment Politics, 1968–1984 6
Powell, Rehnquist, and Stevens 8
Appointment Politics, 1984–1992 10
Appointment Politics, 1992–2016 14
Key Terms 23
Queries 23
Selected Readings on Federal Judicial Appointments 24
Selected Readings on the Supreme Court 25
Selected Biographies 26
CHAPTER ONE
JURISDICTION AND ORGANIZATION OF THE FEDERAL COURTS 27
The Judicial Power 27
Supreme Court Decision Making 34
Source Materials 38
Reading a Supreme Court Decision 41
Key Terms 42
Queries 42
Selected Readings 43
CHAPTER TWO
THE CONSTITUTION, THE SUPREME COURT, AND JUDICIAL REVIEW 45
Granting and Limiting Power 45
The Doctrine of Judicial Review 47
Influences on Judicial Decision Making 51
ix
x Contents
CHAPTER THREE
CONGRESS AND THE PRESIDENT 85
Separation of Powers 85
Congress and Lawmaking 87
The President and Executive Power 90
Foreign Policy and National Security 94
Key Terms 98
Queries 98
Selected Readings 99
I. Delegation and Lawmaking 100
Mistretta v. United States (1989) 100
Immigration and Naturalization Service v. Chadha (1983) 102
Clinton v. City of New York (1998) 105
II. Congressional Investigations 109
Watkins v. United States (1957) 109
Barenblatt v. United States (1959) 112
III. Presidential Privilege and Immunity 113
United States v. Nixon (1974) 113
Nixon v. Fitzgerald (1982) 116
Clinton v. Jones (1997) 118
IV. Appointment and Removal 121
Myers v. United States (1926) 121
Humphrey’s Executor v. United States (1935) 124
Morrison v. Olson (1988) 125
V. Foreign Policy and National Security 128
Ex parte Milligan (1866) 128
Contents xi
CHAPTER FOUR
FEDERALISM 138
Sources of Contention 139
Nature of National Authority 140
Concepts of Federalism 143
The Return of Dual Federalism 147
Key Terms 151
Queries 151
Selected Readings 152
I. Defining the Nature of the Union 153
Chisholm v. Georgia (1793) 153
McCulloch v. Maryland (1819) 155
Cohens v. Virginia (1821) 160
Collector v. Day (1871) 165
II. National Supremacy v. Dual Federalism in the Modern Era 166
U.S. Term Limits, Inc. v. Thornton (1995) 166
United States v. Morrison (2000) 171
National Federation of Independent Business v. Sebelius (2012) 175
CHAPTER FIVE
THE ELECTORAL PROCESS 176
Voting 177
Representation 179
Party Politics and Campaigns 184
Key Terms 186
Queries 186
Selected Readings 186
I. Voting 188
Bush v. Gore (2000) 188
II. Representation 192
Baker v. Carr (1962) 192
Reynolds v. Sims (1964) 195
Vieth v. Jubelirer (2004) 199
Miller v. Johnson (1995) 204
III. Party Politics and Campaigns 208
California Democratic Party v. Jones (2000) 208
McConnell v. Federal Election Commission (2003) 211
Citizens United v. Federal Election Commission (2010) 218
xii Contents
CHAPTER SIX
THE COMMERCE CLAUSE 223
Views of the Framers 224
The Marshall Doctrine 225
The Doctrine of the Taney Court 227
States and the Commerce Clause Today 228
The National Commerce Power: Competing Visions 231
Constitutional Crisis 233
The Commerce Power Reborn 238
A Return to Limitations 240
Key Terms 241
Queries 241
Selected Readings 242
I. Defining the Commerce Power 243
Gibbons v. Ogden (1824) 243
Cooley v. Board of Wardens (1851) 247
II. States and the Commerce Power 249
Southern Pacific Co. v. Arizona (1945) 249
Philadelphia v. New Jersey (1978) 252
Granholm v. Heald (2005) 254
III. Competing Visions of Congress’ Commerce Power 259
United States v. E. C. Knight Co. (1895) 259
Champion v. Ames (1903) 261
Hammer v. Dagenhart (1918) 263
Stafford v. Wallace (1922) 265
IV. The New Deal in Court 267
Carter v. Carter Coal Co. (1936) 267
National Labor Relations Board v. Jones & Laughlin
Steel Corporation (1937) 270
V. Contemporary Views of the Commerce Power 272
Wickard v. Filburn (1942) 272
Heart of Atlanta Motel v. United States; Katzenbach v. McClung (1964) 274
United States v. Lopez (1995) 276
United States v. Morrison (2000) 279
National Federation of Independent Business v. Sebelius (2012) 279
CHAPTER SEVEN
NATIONAL TAXING AND SPENDING POWER 287
Direct and Indirect Taxes 288
Regulation Through Taxation 289
Regulation Through Spending 292
Key Terms 293
Queries 293
Selected Readings 293
I. Direct and Indirect Taxes 295
Hylton v. United States (1796) 295
Pollock v. Farmers’ Loan & Trust Company (1895) 296
II. Regulation Through Taxation 299
McCray v. United States (1904) 299
Bailey v. Drexel Furniture Co. (1922) 300
Contents xiii
CHAPTER EIGHT
PROPERTY RIGHTS AND THE DEVELOPMENT OF DUE PROCESS 311
The Doctrine of Vested Rights 312
Expansion of the Contract Clause 313
Twilight of the Contract Clause 315
Origins of Due Process 316
Judicial Restraint and the Fourteenth Amendment 317
Judicial Activism and the Fourteenth Amendment 318
Search for a Role: Footnote Four 322
Takings, Land Use, and the Fifth Amendment 324
“New Property” and Due Process of Law 325
Key Terms 328
Queries 328
Selected Readings 328
I. Vested Rights and the Ex Post Facto Clause 330
Calder v. Bull (1798) 330
II. The Contract Clause 332
Dartmouth College v. Woodward (1819) 332
Charles River Bridge v. Warren Bridge (1837) 335
Home Building & Loan Association v. Blaisdell (1934) 338
III. Property Rights and the Fourteenth Amendment 340
Slaughterhouse Cases (1873) 340
Munn v. Illinois (1877) 345
Unstaged Debate of 1893: Justice Brewer v. Professor Thayer 348
Lochner v. New York (1905) 351
Nebbia v. New York (1934) 354
West Coast Hotel Co. v. Parrish (1937) 356
Ferguson v. Skrupa (1963) 358
IV. Fifth Amendment Takings and Land Use 359
Kelo v. City of New London (2005) 359
CHAPTER NINE
THE BILL OF RIGHTS 364
Paths of Due Process of Law 364
Creation of the Bill of Rights 366
Applying the Bill of Rights to the States 367
The New Judicial Federalism: A New Double Standard 371
The Second Amendment 372
Key Terms 373
Queries 373
Selected Readings 374
I. Drive for a Bill of Rights 375
Jefferson-Madison Correspondence, 1787–1789 375
xiv Contents
CHAPTER TEN
CRIMINAL JUSTICE 391
Searches and Seizures 392
Right to Counsel 401
Self-Incrimination 403
Punishment 406
Key Terms 410
Queries 410
Selected Readings 410
I. Searches and Seizures 411
A. Whose Rights? 411
Minnesota v. Carter (1998) 411
B. The Exclusionary Rule 413
Mapp v. Ohio (1961) 413
United States v. Leon (1984) 414
C. Search Incident to Arrest 417
Chimel v. California (1969) 417
Riley v. California and United States v. Wurie (2014) 419
D. Automobile Searches 424
California v. Acevedo (1991) 424
E. Electronic Surveillance 427
Olmstead v. United States (1928) 427
Katz v. United States (1967) 429
United States v. United States District Court (1972) 432
United States v. Jones (2012) 432
F. Arrests, Detentions, and Frisks 436
Atwater v. City of Lago Vista (2001) 436
Terry v. Ohio (1968) 440
G. Administrative Searches 442
Board of Education of Pottawatomie County v. Earls (2002) 442
II. Right to Counsel 446
Powell v. Alabama (1932) 446
Gideon v. Wainwright (1963) 448
III. Self-Incrimination 450
Miranda v. Arizona (1966) 450
Dickerson v. United States (2000) 454
IV. Capital Punishment 458
Gregg v. Georgia (1976) 458
Roper v. Simmons (2005) 461
Contents xv
CHAPTER ELEVEN
FREEDOM OF EXPRESSION 466
Tests of Freedom 467
Internal Security 468
Public Forum 471
Protest and Symbolic Speech 473
Freedom of Association 476
Print and Electronic Media 477
Postscript 482
Key Terms 482
Queries 482
Selected Readings 483
I. Internal Security 484
Schenck v. United States (1919) 484
Gitlow v. New York (1925) 485
Whitney v. California (1927) 487
Dennis v. United States (1951) 489
Brandenburg v. Ohio (1969) 492
II. Public Forum 494
Good News Club v. Milford Central School (2001) 494
Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015) 497
III. Protest and Symbolic Speech 501
United States v. O’Brien (1968) 501
Texas v. Johnson (1989) 504
Virginia v. Black (2003) 506
IV. Freedom of Association 511
Boy Scouts of America and Monmouth Council v. Dale (2000) 511
Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006) 514
V. Print and Electronic Media 514
New York Times Co. v. Sullivan (1964) 514
New York Times Co. v. United States (1971) 516
Ashcroft v. Free Speech Coalition (2002) 520
CHAPTER TWELVE
RELIGIOUS LIBERTY 525
Competing Visions 525
The Establishment Clause 527
The Free Exercise Clause 532
Values in Tension 536
Key Terms 536
Queries 537
Selected Readings 537
I. Religion in Public Schools and Other Official Settings 538
Santa Fe Independent School District v. Doe (2000) 538
Town of Greece v. Galloway (2014) 541
xvi Contents
CHAPTER THIRTEEN
PRIVACY 572
Dimensions of Privacy 572
Private Law and Public Law Beginnings 573
Invigorating a Right of Privacy 575
Abortion 576
A Developing Concept 579
Key Terms 583
Queries 583
Selected Readings 583
I. Invigorating a Right of Privacy 584
Griswold v. Connecticut (1965) 584
II. Abortion 586
Roe v. Wade (1973) 586
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) 590
Whole Woman’s Health v. Hellerstedt (2016) 595
III. Sexual Orientation and Marriage Equality 601
Lawrence v. Texas (2003) 601
Obergefell v. Hodges (2015) 606
CHAPTER FOURTEEN
EQUAL PROTECTION OF THE LAWS 612
Identifying Forbidden Discrimination 613
Racial Discrimination 614
State Action 619
Gender Discrimination 620
Fundamental Rights Analysis 622
Congressional Protection of Civil Rights 622
Affirmative Action 624
Key Terms 626
Queries 627
Selected Readings 627
I. Identifying Forbidden Discrimination 628
Korematsu v. United States (1944) 628
Contents xvii
CHAPTER FIFTEEN
SECURITY AND FREEDOM IN WARTIME 671
The Fragility of Civil Liberties 671
The Patriot and Freedom Acts 672
Antiterrorist Policies in Court 674
“Inter Arma Silent Leges” 677
Key Terms 678
Queries 678
Selected Readings 678
Ex parte Milligan (1866) 679
Ex parte Quirin (1942) 681
Korematsu v. United States (1944) 683
New York Times Company v. United States (1971) 686
United States v. United States District Court (1972) 686
Boumediene v. Bush (2008) 689
APPENDIX A
THE CONSTITUTION OF THE UNITED STATES OF AMERICA 695
APPENDIX B
JUSTICES OF THE SUPREME COURT 707
APPENDIX C
PRESIDENTS AND JUSTICES 711
xviii Contents
APPENDIX D
AMERICAN CONSTITUTIONAL DEVELOPMENT AS REFLECTED IN A CHRONOLOGY
OF CASES REPRINTED IN THIS BOOK 716
GLOSSARY 723
INDEX OF CASES 737
INDEX OF SUBJECTS AND NAMES 747
PREFACE
xix
xx Preface
• Throughout: New material in both essays and excerpted cases reflects recent devel-
opments, especially from the 2011–2012, 2012–2013, 2013–2014, 2014–2015, and
2015–2016 terms. Moreover, all data in tables have been updated.
• The chapter essays contain discussion of 30 additional cases.
• The Introduction, which is the first substantive chapter in the book, includes new
material on the change in the Senate regarding use of the filibuster in nomination
situations, on the stalemate in the Senate following the death of Justice Scalia, and on
Court-related facets of the 2016 presidential election.
• Chapter One includes the most recent data on the Supreme Court’s caseload.
• Chapter Two includes the most recent data on state and federal laws declared
unconstitutional.
• Chapter Three reviews the recent military actions in Afghanistan, Libya, and Iraq, and
the Court’s decision on the recess appointment power.
• Chapter Four adds a cross reference to National Federation of Independent Business v.
Sebelius (2012) which is excerpted in Chapter Six.
• Chapter Five reviews important decisions relating to the Voting Rights Act and
redistricting.
• Chapter Six adds National Federation of Independent Business v. Sebelius (2012) which
is also cross-referenced in Chapter Four, given the significance of the case for both
federalism and the commerce power.
Preface xxi
• Chapter Ten adds both United States v. Jones (2012) and Riley v. California (2014), and
has been updated with the most recent data on stop-and-frisk policy in New York City
as well as for FISA and other types of electronic surveillance.
• Chapter Eleven adds Walker v. Sons of Confederate Veterans (2015).
• Chapter Twelve adds Town of Greece v. Galloway (2014).
• Chapter Thirteen adds both Obergefell v. Hodges (2015) and Whole Woman’s Health v.
Hellerstedt (2016), depicting the latter as marking a distinct change in how the Supreme
Court reviews regulations affecting abortions.
• Chapter Fourteen adds both Loving v. Virginia (1967) and Fisher v. University of Texas
at Austin (2016) and particularly places the latter case in the context of earlier rulings
on affirmative action.
• Chapter Fifteen describes the Freedom Act (2015) that modified the Patriot Act (2001).
• The Glossary adds seven new terms that draw from the Key Terms feature that follows
each chapter essay.
• The Appendix section of the book is now organized into four parts: Appendix A con-
sists of the Constitution of the United States of America, supplemented by explanatory
footnotes where appropriate. Appendix B displays a table of all justices of the Supreme
Court, arranged by natural or discrete court. Appendix C displays a table of the justices,
arranged by presidential term. Appendix D consists of a table depicting American con-
stitutional development as reflected in a chronology of cases reprinted in this book. Also
organized by presidential term, it can be viewed as a chronological table of contents.
FEATURES
• Essays. A distinctive feature of the book remains the essay preceding the cases in each
chapter. These essays supply the historical and political contexts and trace the mean-
dering thread of constitutional doctrine across major decisions.
• Case Excerpts. The case excerpts that follow the essays—essential for learning and
in depicting constitutional interpretation at work—are as generous as space allows.
As shown in the contents, cases in each chapter are grouped by subtopic within that
chapter, loosely corresponding to the organization of the essay itself.
• Unstaged Debates. Chapters Two and Eight each contain an “unstaged debate” that
highlights a topic covered within the chapter.
• Views inside the Court. Chapters Eight and Twelve each contain an example of a
justice’s attempt to persuade one or more colleagues as opinions were being drafted.
• Tips on reading a Supreme Court decision are presented in Chapter One.
• Court-related publications as well as the abundant Court-related resources available on
the Internet are surveyed in Chapter One.
• Glossary. Complementing both the essays and case excerpts is the glossary, which
contains a definition of every term that is set in boldface in the essays and listed among
the key terms at the conclusion of each chapter essay.
• Selected Readings. To complement both the essays and excerpted cases, each chap-
ter essay concludes with a short and updated list of suggestions for further reading.
• Boldface italics. Names of cases discussed in the essays that are also reprinted in the
book appear in boldface italics.
• Headnotes. Each case headnote features not only a summary of the background of the
case but also the voting alignment for that case. The case citations above each head-
note identifying printed sources also include the URL for online access to the case.
xxii Preface
• Throughout, the book’s few footnotes scattered are numbered consecutively by chap-
ter. In every instance, text appearing within excerpted opinions is the Court’s, except
for brief insertions within brackets for dates or case names or unless specially marked
“—ED.” as having been inserted for this book.
• Web site. The site complements the seventeenth edition and facilitates teaching and
learning in at least three ways: (1) The site contains important decisions handed down
after this edition went to press, which are edited in the same manner as cases excerpted
in the book. (2) The site retains cases from previous editions that were displaced by
new material and so may be used as a case archive. Faculty designing syllabi thus have
a larger number of edited cases from which to choose. (3) Finally, the site contains
useful noncase material as well as links to other Court-related sites.
ACKNOWLEDGMENTS
Any new edition of this book necessarily brings to mind the legacy of Professor
Alpheus Thomas Mason—great man, teacher, scholar, mentor and friend—who
through more than six decades of teaching in the Department of Politics at Prince-
ton University and elsewhere following his retirement literally touched thousands of
students, undergraduate and graduate alike.
Through the years since publication of the first edition of American Consti-
tutional Law in 1954, general readers, faculty, and students have contributed to
its betterment. Their suggestions, reflected in both deletions and additions, indi-
cate the measure of my indebtedness. I am especially grateful to those scholars
who thoroughly reviewed the sixteenth edition and made recommendations for the
seventeenth. These include Jim R. Alexander, Texas Woman’s University; Richard
A. Glenn, Millersville University; Jeffrey D. Hilmer, State University of New York
at Potsdam; Morris Jenkins, Southeast Missouri State University; John C. Kilwein,
West Virginia University; Christopher Malone, Lehman College (CUNY); Mark C.
Miller, Clark University; Kati Mohammad-Zadeh, University of Minnesota; and Kent
Rissmiller, Worcester Polytechnic Institute. Special thanks are due also to Susan
Dicklitch-Nelson and Jennifer Kibbe, current and most recent chair of the Depart-
ment of Government at Franklin & Marshall College and Jessica Bortz, academic
coordinator for the department, as well as to my students, past and present, in
Government 314 and 315. I am also grateful to Tom Karel, collection development
librarian at the Franklin & Marshall College Library, who ably assisted in ferreting
out sometimes obscure sources.
As always, deserving of much credit for their wisdom, guidance, and forbear-
ance are the many people at Routledge who have supported this book. In partic-
ular, my thanks go to senior politics editor Jennifer Knerr, senior editorial assistant
Ze’ev Sudry, and production editor Miriam Armstong. I would also like to thank our
copy editor, Christianne Mariano of Bookbright Media, and her production manager
Jamie Vidich.
Much gratitude is owed also to family—my son Todd and his wife Stacy, my
daughter Claire and her husband Michael, my grandsons Jackson, Everett, and Ben-
jamin, and especially Ellen, my wife for 50 years. Their love and devotion have been
both sustaining and reassuring.
Preface xxiii
Finally, and sadly, I note the passing of John H. Vanderzell (1924–2016), who
was Dean of the College at Franklin & Marshall when I was hired and later a col-
league in the Department of Government. Over a career spanning some 37 years
John made a remarkable impact as a teacher and mentor.
Questions, suggestions, and comments about the book are welcomed via
e-mail: grier.stephenson@fandm.edu.
D. G. S., Jr.
INTRODUCTION
There are two parties in the United States, most decidedly opposed to each other as
to the rights, powers and province of the judiciary. . . . One party almost claims infal-
libility for the judges, and would hedge them round about in such a manner that they
cannot be reached by popular opinion at all, and . . . the other would subject them to
the vacillations of popular prejudice and seemingly require it of them to define and
administer the law, and interpret the Constitution, according to the real or apparent
expediency of things.
—NILES’ WEEKLY REGISTER (1822)
I t was one of George Washington’s first concerns as president: Who would sit on
the Supreme Court of the United States? “Impressed with a conviction that the
true administration of justice is the firmest pillar of good government,” he wrote
future Attorney General Edmund Randolph in 1789, “I have considered the first
arrangement of the judicial department as essential to the happiness of our coun-
try and the stability of its political system.” Under the Articles of Confederation,
which the recently ratified Constitution replaced, there had been no national judi-
ciary. The Court’s role in the new political system was unclear, but Washington
realized the impact the Court might have in the young Republic. This required,
he told Randolph, “the selection of the fittest characters to expound the laws and
dispense justice. . . .” As he selected the six justices Congress had authorized,
Washington also made sure that each section of the nation was represented and
that the six were strong supporters of the new Constitution.
The first session of the newly constituted Supreme Court was scheduled for
February 1, 1790, in the Exchange Building at the foot of Broad Street in New York
City. The occasion was inauspicious. Only three of the six justices were present,
so the Court adjourned until February 2. By then a fourth justice had arrived. In
contrast to the black robes worn today, the justices were dressed in black and red
gowns. A newspaper account of the day reported, “As no business appeared to
require immediate notice, the Court was adjourned.”
1
2 Introduction
“[W]e must never forget that it is a constitution1 we are expounding.” With this
commanding reminder, Chief Justice John Marshall interrupted a closely reasoned
argument in McCulloch v. Maryland (1819).2 He did not pause to spell out what
he had in mind. His meaning emerged from other passages in the opinion.
As Chapter Four will show, Marshall found in the Constitution a deep reservoir
of congressional power and a subordinate place for the states in the federal system.
Even without express authorization in the Constitution, Congress could charter a
national bank. Furthermore, Maryland and other states could not tax it. The Supreme
Court, as expounder of the Constitution, would correspondingly have a narrow but
nonetheless important role, guarding national over state interests. The results of
McCulloch have been far-reaching.
In McCulloch, Marshall made constitutional law.3 Constitutional law or
jurisprudence consists of the prevailing meaning of the Constitution as found
mainly in decisions by the U.S. Supreme Court. As law, these decisions are “legal,”
to be sure, but the law they announce is not ordinary law. Because it deals with
fundamental matters such as the organization of government and the authority of
officials over the lives of citizens, constitutional law is a very special kind of law,
fusing politics, history, and political philosophy. This art of interpreting the Con-
stitution is a lawyer’s art only in the narrow sense that all justices of the Supreme
Court have been lawyers, even though some people are surprised to learn that
the Constitution does not require that the justices be lawyers or even that they
have judicial experience. But the justices have had to be more than mere legal
technicians. Supreme Court justices succeed as credible constitutional authorities
to the degree that they are persuasive that it is the Constitution, not their individual
preferences, that speak.
A theme of this book is the continuing importance of constitutional interpre-
tation. After some 230 years, the Constitution is far more than a historic relic on
display for tourists visiting the National Archives in Washington. The Constitution
is the vital foundation of our political system. Broad or narrow, the prevailing
Introduction 3
A CHANGING JUDICIARY
attend a session of the Court after 1793; accepted a diplomatic mission to England
in 1794, which led to an accord that today bears his name; and resigned in 1795 to
become governor of New York. Departing Treasury Secretary Alexander Hamilton
then turned down Washington’s offer of the chief justiceship so he could resume
law practice in New York. Today, presidents are rarely rebuffed by prospective
nominees. Moreover, a justice’s tenure is usually long, with both the average and
median length of service for justices appointed since 1900 equaling four presidential
terms.
Detracting from the attractiveness of the high bench in the early years was the
circuit riding Congress imposed on the justices, a duty not finally eliminated until
1891. In addition to sitting collectively as the Supreme Court, justices sat as judges
of the circuit courts, one of the two types of lower federal courts established by
the Judiciary Act of 1789. Though the act provided for three types of courts (district
courts, circuit courts, and the Supreme Court), it authorized the appointment of
judges only for the district courts and the Supreme Court. Except for a brief period
in 1801–1802, no separate circuit judgeships existed until 1855 for California and
then in 1869 for the rest of the nation. Each circuit court was at first staffed by two
justices (a number soon reduced to one) and one district judge. As a result, the
early justices spent far more time holding circuit court than they did sitting on the
Supreme Court. Nonetheless, though small in number, some of the Court’s decisions
in this first decade—three of which are reprinted in this book—were instrumental in
laying the foundations of an enlarged judicial power that emerged in the nineteenth
century.
Whether a justice traveled by carriage or by boat, riding circuit was onerous.
The rigors must have tested devotion to Court and country. Not only were the dis-
tances long, but justices paid expenses out of their salaries. Accommodations were
rarely ideal. Justice Cushing once found himself with 12 other lodgers in a single
room, and Justice Iredell reported encountering “a bed fellow of the wrong sort.”
While crossing the frozen Susquehanna River at Havre de Grace, Maryland, Justice
Chase fell through the ice and almost drowned.
THE COURT COMES OF AGE. Although the Supreme Court had three chief justices in
its first decade, the combined service of the next three chief justices (John Marshall,
Roger Taney, and Salmon Chase) totaled 72 years. As an institution of American
government, the Supreme Court owes much to John Marshall, sometimes called “the
Great Chief Justice” as if no other occupant of that office could ever be his equal.
Appointed in the last days of John Adams’s term after former Chief Justice Jay had
refused reappointment (in declining, Jay wrote Adams that the Court “would not
obtain the energy, weight and dignity which are essential to its affording due sup-
port to the National Government”), Marshall served 34 years (1801–1835), longer
than any other chief.
Marshall dominated the Court like no chief justice before or since, making
the Court the institution Jay had doubted it could become. Some of the factors that
contributed to Marshall’s influence were his personality and political acumen, the
issues embedded within the cases the Court decided, and his determination to use
the federal judiciary as a means to reinforce constitutional principles he thought vital
to the advancement of the nation. In addition, circumstances of life in Washington—
the justices resided and took their meals at the same boardinghouse and traveled
together across town to the small courtroom in the Capitol basement—made it
easier for a strong-willed individual like Marshall to influence his colleagues. Mar-
shall also ended the practice of seriatim opinions inherited from English courts
Introduction 5
whereby each judge gave his view of the case. Henceforth, the Court would speak
with one voice—the opinion of the Court—and the voice was usually Marshall’s.
JUDICIAL BUSINESS IN THE NINETEENTH CENTURY. Despite Marshall’s deserved reputa-
tion in constitutional law, the bulk of the Court’s work in his time and for years
afterward was nonconstitutional in nature. Private law cases vastly outnumbered
public law cases. In fact, of the 1,121 cases the Court decided during Marshall’s
tenure, only 76 raised federal constitutional issues. The majority involved admiralty
and maritime issues (these cases were numerous given the fact that most of the
nation’s commerce before the Civil War was waterborne), common-law matters,
and diversity disputes. (Created by the Judiciary Act of 1789, diversity jurisdic-
tion allows federal courts to hear some suits involving ordinary matters of state
law when the parties are citizens of different states.) In 1825, for example, there
were no constitutional cases decided at all, and 54 percent of the docket involved
admiralty, common-law, and diversity matters. As late as 1875, such cases con-
sumed 45 percent of the docket; constitutional cases amounted to but 6 percent
of the total. The Court of the nineteenth century was still largely a tribunal for the
final settlement of disputes between individual parties. Its role as policymaker was
decidedly secondary.
Though secondary, policymaking was hardly unimportant. Congress recog-
nized as much in a series of statutes that altered the number of justices. Between
1789 and 1869, Congress changed the number of justices from six to five, five to six,
six to seven, seven to nine, nine to ten, ten to seven, and seven to nine (the num-
ber authorized today)—each time partly with an eye toward influencing the Court’s
constitutional decisions.
THE MODERN COURT. The federal judiciary underwent important structural
changes beginning in the late nineteenth century. By the 1880s, it had a case
backlog of several years. A cartoon of the day depicted the justices wading about
their courtroom in a sea of briefs and other documents, pleading for relief, but a
docket in arrears was not simply the product of an expanding population. Con-
gress had gradually enlarged the jurisdiction of the federal courts, meaning that a
greater variety of questions confronted the justices. Through its cases, the Court
could hardly escape embroiling itself in virtually every political movement of the
day. Swollen dockets prompted Congress to act. First, in 1891 Congress authorized
intermediate appellate courts called circuit courts of appeals. For the first time, the
federal judiciary had appellate tribunals below the Supreme Court. For most cases,
the old circuit courts had not been appellate tribunals; a case began in either the
district or circuit court depending on the subject matter. The old circuit courts were
soon merged into the district courts. Circuit riding by the justices, already reduced
substantially in the latter half of the nineteenth century, came to an end (ironically
just as interstate rail transportation had become faster, more reliable, and more
comfortable).
Second, the 1891 statute introduced some certiorari, or discretionary, jurisdic-
tion. This meant that there were fewer categories of cases the justices were legally
obliged to hear and that the new courts of appeals became the courts of last resort
for many cases.
Third, as a result of intense lobbying by Chief Justice William Howard Taft
(the only president to have become chief justice), Congress in 1925 passed the
Judges Bill, which expanded discretionary jurisdiction even further. Now, the Court
was in control of most of its docket, not only in terms of the number of cases it
would decide each year but also, for the most part, of the issues it would confront.
6 Introduction
Taft’s political talents left another institutional legacy: the Supreme Court Building.
With construction finished in 1935, five years after Taft’s death, the justices finally
had a home of their own.
Today, in contrast to the docket in the nineteenth century, public law con-
sumes the Court’s time. Roughly half of the Court’s business now consists of con-
stitutional cases, with statutory interpretation accounting for almost all of the rest.
Moving beyond its dispute-resolution role, the Court has become mainly a maker of
public policy for uniform application across the nation.
The Constitution entrusts the selection of Supreme Court justices, as well as judges
of the lower federal courts, to both the president and the Senate. The choice of the
former requires the consent of the latter. Senatorial approval is usually forthcoming,
but not always. As of April 2017, 113 individuals have served on the Court.4 Of the
158 nominations presidents have submitted to the Senate, 36 have failed to pass,
all but eight in the nineteenth century. Several confirmed persons have declined to
sit. By contrast, the Senate has blocked only nine nominations to the Cabinet since
1789. In exercising their constitutional obligation to give “advice and consent,” sen-
ators ordinarily employ greater scrutiny and more independence with the review of
justices than with heads of executive departments. Enhanced attention to the former
is explained by the Court’s place in the political system, life tenure for justices, and
the fact that the Court, unlike the Cabinet, is not part of the executive branch.
While most senatorial scrutiny today occurs during public hearings before the
Judiciary Committee at which the nominee testifies, for most of American history,
the practice was otherwise. As a standing committee of the Senate, the Judiciary
Committee dates only from 1816, with nominations prior to that date being dealt
with by the full Senate alone. Between 1816 and 1867 some two-thirds of the nom-
inations were referred to the Judiciary Committee, with nearly all of them being
processed in that way since 1868.
The modern practice began to take shape with President Wilson’s nomination
of Louis Brandeis in 1916 when the committee first held an open hearing with out-
side witnesses testifying, although the nominee himself was not present. Supreme
Court nominees did not appear before the committee to answer questions until
1925, when President Coolidge’s nomination of Attorney General Harlan F. Stone
ran into difficulty. Even here, however, Stone was present only to respond to spe-
cific allegations growing out of his work as attorney general. The second nominee
to testify was Felix Frankfurter in 1939, who agreed to appear only when supporters
informed him that he would probably be rejected if he did not. Indeed, Frankfurter
was the first to take a variety of questions in a transcribed public hearing. Still, such
appearances did not become routine until after 1954. Ever since, all nominees have
been expected to appear, although concerns persist over the propriety of questions
that senators ask and what obligation the nominee has to answer them. Moreover,
hearings since 1965 have usually been both exhaustive and, for the prospective jus-
tice, often exhausting. Gone forever, apparently, are the days of the cursory Senate
probing that Kennedy nominee Byron White experienced in 1962, when public
hearings lasted a scant one hour and 35 minutes.
“The good that Presidents do is often interred with their Administrations,” The
Nation editorialized in 1939. “It is their choice of Supreme Court Justices that lives
after them.” Although the separate institutions mandated by the Constitution make
Introduction 7
In the fall of 1970, President Nixon was still determined to appoint a southerner
to the Supreme Court. The most likely spot to be vacated was that occupied by
84-year-old Justice Hugo Black. Asked for his reaction, Black replied, “I think it
would be nice to have another Southerner up here.” The Alabaman, appointed in
1937, had moved into third place in length of service. The longevity goal was in
sight, but fate defeated its realization. In September 1971, Justices Black and John
Harlan, both ailing, resigned within days of each other. Black fell eight months shy
of Justice Stephen J. Field’s record of 34 1/2 years.
Nixon now had an opportunity no president had experienced since 1940 that
of simultaneously filling two Supreme Court vacancies. His choices were Lewis F.
Powell, Jr., 64, a distinguished Richmond lawyer, and William H. Rehnquist, 47, law
clerk, 1952–1953, to Justice Robert H. Jackson and since 1969 assistant attorney gen-
eral in charge of the Justice Department’s Office of Legal Counsel.
Powell, arousing little or no objection, was confirmed 89–1 on December 6.
Rehnquist ran into stormy waters. But ultimately received Senate approval on
December 10, 1971, 68–26. Powell was sworn in on January 6, 1972, and Rehnquist
on January 7.
On New Year’s Eve 1974, Justice William O. Douglas suffered a stroke.
Although seriously disabled, Douglas was reluctant to retire. “Even if I’m only half
alive,” he remarked, “I can still cast a liberal vote.” But some of his colleagues ques-
tioned whether he should be casting any votes at all. “I should like to register my
protest,” Justice Byron White wrote Chief Justice Burger on October 20, 1975 (with
copies to the other justices), “against the decision of the Court not to assign the
writing of any opinions to Mr. Justice Douglas. . . . [T]here are one or more Justices
who are doubtful about the competence of Mr. Justice Douglas that they would
not join any opinion purportedly authored by him. At the very least, they would
not hand down any judgment arrived at by a 5–4 vote where Mr. Justice Douglas
is in the majority. . . . That decision, made in the absence of Mr. Justice Douglas,
was supported by seven Justices. It is clear that the ground for the action was the
Introduction 9
assumed incompetence of the justice.” White then reminded the “Brethren” (as the
justices used to refer to themselves) that “nowhere” does the Constitution provide
“that a Justice’s colleagues may deprive him of his office by refusing to permit him
to function as a Justice. . . . If the Court is convinced that Justice Douglas should
not continue to function as a Justice, the Court should say so publicly and invite
Congress to take appropriate action.”
Raised again was the thorny question of how to remove an incapacitated
Supreme Court justice. The Constitution supplies no answer, but history does. On
more than one occasion, the power of persuasion exerted on a faltering justice by
colleagues has proved effective. In 1869, Justice Field convinced Justice Grier that he
was too ill to continue. Later, according to one account, when Justice Field became
incapacitated, the first Justice Harlan asked his colleague whether he remembered
urging Grier to retire. “Yes,” Field snapped, “and a dirtier day’s work I never did
in my life.” Ignoring or eluding pressure from whatever source, Douglas reached
his own decision to leave the Court on November 12, almost a year after he was
stricken. He had served 36 years, surpassing the record long held by Justice Field.
For Douglas’s seat President Ford nominated John Paul Stevens, a 55-year-old
appeals court judge from the Seventh Circuit and a former clerk to Justice Wiley
Rutledge. The Senate quickly confirmed 98–0, and on December 19, 1975, Stevens
was sworn in.
THE FIRST WOMAN JUSTICE. The judiciary figured prominently in the presidential
campaign of 1980. Five years had passed without a Supreme Court vacancy on a
bench where more than half the justices were above 70 years of age. Moreover,
the Court only seven years before had injected itself into the most divisive of con-
temporary moral issues by declaring abortion to be a constitutional right. Three
Nixon appointees had voted with the majority, and one of them—Blackmun—had
written the majority opinion. This case alone was reminder enough that Republican
presidents Eisenhower, Nixon, and Ford had not been notably adept in picking
nominees who accorded with their political views. Warren, Brennan, Blackmun,
and Stevens had all proved to be “surprises” in various ways, lending credence to
President Truman’s lament: “Packing the Supreme Court simply can’t be done. I’ve
tried and it won’t work.” This time, Republicans wanted to try harder.
The Republican platform therefore called for judges “who respect traditional
family values and the sanctity of innocent human life.” The second part was code
for opposition to abortion. Denounced by the National Organization for Women for
“medieval stances on women’s issues,” Ronald Reagan confounded the campaign
by promising to name a woman to fill one of “the first Supreme Court vacancies in
my administration.”
As president, Reagan soon had his chance. Potter Stewart, appointed by
President Eisenhower in 1958, announced his retirement on June 18, 1981. Rea-
gan’s choice for a successor was Sandra Day O’Connor, 51, of the Arizona Court of
Appeals. A law student with Justice Rehnquist at Stanford University (he finished
first, she third, in the class of 1952), not only was O’Connor to be the first woman
to sit on the High Court, she was the first since Brennan to have had experience on
a state bench. Moreover, she was the first since Justice Harold Burton, Stewart’s pre-
decessor, to have served as a state legislator. Criticized by some for injecting gender
into justice, Reagan’s fulfillment of a campaign pledge placed him squarely in an
established tradition in which other presidents considered region, religion, and race
in making appointments to the Court. Despite concerns of right-to-life groups that
she was “unsound” on abortion, the Senate, under Republican control for the first
time since 1955, confirmed her 99–0 on September 21.
10 Introduction
On June 17, 1986, President Reagan announced Chief Justice Burger’s retirement
and his intention to nominate Rehnquist as chief justice. Rehnquist would become
only the third chief to have been selected from the Court itself.
At age 78, Burger had served longer than any other chief justice nominated in
the twentieth century. Although Nixon named Burger to the Court in 1969 to fulfill
a campaign pledge against judicial activism, the Court during Burger’s time did not
overturn outright a single major decision of the activist Warren Court (1953–1969).
The persistence of the Warren Court’s jurisprudence was all the more remarkable
when it is remembered that by 1986, only three members of the Warren Court were
still serving, and of the three only two (Justices Brennan and Marshall) had been
closely identified with the Warren Court’s major accomplishments. Although some
of the Warren Court’s landmark rulings on criminal procedure were restricted—most
notably the exclusionary rule (see Chapter Ten)—the Burger Court practiced its own
kind of judicial activism, especially with respect to racial and sexual equality, abor-
tion, and other privacy issues (see Chapters Thirteen and Fourteen). With the possi-
ble exception of Taft, Burger was the most active chief justice outside the Supreme
Court. He treated his office like a pulpit from which to campaign energetically for
changes in legal education, professional standards for bench and bar, criminal sanc-
tions, prisons, and the administration of justice.
Also on June 17, 1986, Reagan nominated Antonin Scalia, 50, of the Court
of Appeals for the District of Columbia Circuit as associate justice. Scalia would
become the first Italian American to serve on the nation’s highest court. Formerly a
law school professor and an assistant attorney general in the Department of Justice,
he, like Rehnquist, was widely regarded as a politically conservative legal thinker.
WHOSE SUPREME COURT IS IT? From the outset, Rehnquist’s nomination encoun-
tered intense opposition, a “Rehnquisition,” as Senator Orrin Hatch called it, even
though Republicans still controlled the Senate. If the president took a nominee’s
views into account, should not the Senate do the same? Preferring to forget their
party’s opposition to Abe Fortas in 1968, Republican leaders wanted to limit the
Senate to a consideration of character and merit, but some Democrats seemed intent
on ensuring a coordinate role for the Senate. “The framers envisioned a major role
for the Senate in the appointment of judges,” argued Senator Edward Kennedy. “It is
historical nonsense to suggest that all the Senate has to do is to check the nominee’s
I.Q., be sure he has a law degree and no arrests, and rubber stamp the President’s
choice.” If Rehnquist’s vision of the Constitution was properly the Senate’s concern,
how much should it matter? Neither the Constitution nor Senate tradition offered a
conclusive answer.
Hearings by the Judiciary Committee on the Rehnquist nomination consumed
four days, and Senate floor debate five. Confirmation, 65–33, came on September 17.
Not since 1836, when the Senate confirmed Roger Taney, had a nominee for chief
justice been approved by a ratio of less than 2–1.
Perhaps because the Senate’s scrutiny of Rehnquist was so intense, Scalia’s
nomination generated only mild turbulence. The Judiciary Committee’s hearings on
Judge Scalia lasted only two days. Floor debate did not exceed five minutes. Follow-
ing the vote on Rehnquist, the Senate confirmed Scalia, 98–0.
THE BORK DEBACLE. At the end of Rehnquist’s first term as chief, Justice Lewis
Powell announced his retirement. For several years, Powell had held a pivotal seat
on the Court, especially in abortion, privacy, church-state, and affirmative action
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DANCE ON STILTS AT THE GIRLS’ UNYAGO, NIUCHI
I see increasing reason to believe that the view formed some time
back as to the origin of the Makonde bush is the correct one. I have
no doubt that it is not a natural product, but the result of human
occupation. Those parts of the high country where man—as a very
slight amount of practice enables the eye to perceive at once—has not
yet penetrated with axe and hoe, are still occupied by a splendid
timber forest quite able to sustain a comparison with our mixed
forests in Germany. But wherever man has once built his hut or tilled
his field, this horrible bush springs up. Every phase of this process
may be seen in the course of a couple of hours’ walk along the main
road. From the bush to right or left, one hears the sound of the axe—
not from one spot only, but from several directions at once. A few
steps further on, we can see what is taking place. The brush has been
cut down and piled up in heaps to the height of a yard or more,
between which the trunks of the large trees stand up like the last
pillars of a magnificent ruined building. These, too, present a
melancholy spectacle: the destructive Makonde have ringed them—
cut a broad strip of bark all round to ensure their dying off—and also
piled up pyramids of brush round them. Father and son, mother and
son-in-law, are chopping away perseveringly in the background—too
busy, almost, to look round at the white stranger, who usually excites
so much interest. If you pass by the same place a week later, the piles
of brushwood have disappeared and a thick layer of ashes has taken
the place of the green forest. The large trees stretch their
smouldering trunks and branches in dumb accusation to heaven—if
they have not already fallen and been more or less reduced to ashes,
perhaps only showing as a white stripe on the dark ground.
This work of destruction is carried out by the Makonde alike on the
virgin forest and on the bush which has sprung up on sites already
cultivated and deserted. In the second case they are saved the trouble
of burning the large trees, these being entirely absent in the
secondary bush.
After burning this piece of forest ground and loosening it with the
hoe, the native sows his corn and plants his vegetables. All over the
country, he goes in for bed-culture, which requires, and, in fact,
receives, the most careful attention. Weeds are nowhere tolerated in
the south of German East Africa. The crops may fail on the plains,
where droughts are frequent, but never on the plateau with its
abundant rains and heavy dews. Its fortunate inhabitants even have
the satisfaction of seeing the proud Wayao and Wamakua working
for them as labourers, driven by hunger to serve where they were
accustomed to rule.
But the light, sandy soil is soon exhausted, and would yield no
harvest the second year if cultivated twice running. This fact has
been familiar to the native for ages; consequently he provides in
time, and, while his crop is growing, prepares the next plot with axe
and firebrand. Next year he plants this with his various crops and
lets the first piece lie fallow. For a short time it remains waste and
desolate; then nature steps in to repair the destruction wrought by
man; a thousand new growths spring out of the exhausted soil, and
even the old stumps put forth fresh shoots. Next year the new growth
is up to one’s knees, and in a few years more it is that terrible,
impenetrable bush, which maintains its position till the black
occupier of the land has made the round of all the available sites and
come back to his starting point.
The Makonde are, body and soul, so to speak, one with this bush.
According to my Yao informants, indeed, their name means nothing
else but “bush people.” Their own tradition says that they have been
settled up here for a very long time, but to my surprise they laid great
stress on an original immigration. Their old homes were in the
south-east, near Mikindani and the mouth of the Rovuma, whence
their peaceful forefathers were driven by the continual raids of the
Sakalavas from Madagascar and the warlike Shirazis[47] of the coast,
to take refuge on the almost inaccessible plateau. I have studied
African ethnology for twenty years, but the fact that changes of
population in this apparently quiet and peaceable corner of the earth
could have been occasioned by outside enterprises taking place on
the high seas, was completely new to me. It is, no doubt, however,
correct.
The charming tribal legend of the Makonde—besides informing us
of other interesting matters—explains why they have to live in the
thickest of the bush and a long way from the edge of the plateau,
instead of making their permanent homes beside the purling brooks
and springs of the low country.
“The place where the tribe originated is Mahuta, on the southern
side of the plateau towards the Rovuma, where of old time there was
nothing but thick bush. Out of this bush came a man who never
washed himself or shaved his head, and who ate and drank but little.
He went out and made a human figure from the wood of a tree
growing in the open country, which he took home to his abode in the
bush and there set it upright. In the night this image came to life and
was a woman. The man and woman went down together to the
Rovuma to wash themselves. Here the woman gave birth to a still-
born child. They left that place and passed over the high land into the
valley of the Mbemkuru, where the woman had another child, which
was also born dead. Then they returned to the high bush country of
Mahuta, where the third child was born, which lived and grew up. In
course of time, the couple had many more children, and called
themselves Wamatanda. These were the ancestral stock of the
Makonde, also called Wamakonde,[48] i.e., aborigines. Their
forefather, the man from the bush, gave his children the command to
bury their dead upright, in memory of the mother of their race who
was cut out of wood and awoke to life when standing upright. He also
warned them against settling in the valleys and near large streams,
for sickness and death dwelt there. They were to make it a rule to
have their huts at least an hour’s walk from the nearest watering-
place; then their children would thrive and escape illness.”
The explanation of the name Makonde given by my informants is
somewhat different from that contained in the above legend, which I
extract from a little book (small, but packed with information), by
Pater Adams, entitled Lindi und sein Hinterland. Otherwise, my
results agree exactly with the statements of the legend. Washing?
Hapana—there is no such thing. Why should they do so? As it is, the
supply of water scarcely suffices for cooking and drinking; other
people do not wash, so why should the Makonde distinguish himself
by such needless eccentricity? As for shaving the head, the short,
woolly crop scarcely needs it,[49] so the second ancestral precept is
likewise easy enough to follow. Beyond this, however, there is
nothing ridiculous in the ancestor’s advice. I have obtained from
various local artists a fairly large number of figures carved in wood,
ranging from fifteen to twenty-three inches in height, and
representing women belonging to the great group of the Mavia,
Makonde, and Matambwe tribes. The carving is remarkably well
done and renders the female type with great accuracy, especially the
keloid ornamentation, to be described later on. As to the object and
meaning of their works the sculptors either could or (more probably)
would tell me nothing, and I was forced to content myself with the
scanty information vouchsafed by one man, who said that the figures
were merely intended to represent the nembo—the artificial
deformations of pelele, ear-discs, and keloids. The legend recorded
by Pater Adams places these figures in a new light. They must surely
be more than mere dolls; and we may even venture to assume that
they are—though the majority of present-day Makonde are probably
unaware of the fact—representations of the tribal ancestress.
The references in the legend to the descent from Mahuta to the
Rovuma, and to a journey across the highlands into the Mbekuru
valley, undoubtedly indicate the previous history of the tribe, the
travels of the ancestral pair typifying the migrations of their
descendants. The descent to the neighbouring Rovuma valley, with
its extraordinary fertility and great abundance of game, is intelligible
at a glance—but the crossing of the Lukuledi depression, the ascent
to the Rondo Plateau and the descent to the Mbemkuru, also lie
within the bounds of probability, for all these districts have exactly
the same character as the extreme south. Now, however, comes a
point of especial interest for our bacteriological age. The primitive
Makonde did not enjoy their lives in the marshy river-valleys.
Disease raged among them, and many died. It was only after they
had returned to their original home near Mahuta, that the health
conditions of these people improved. We are very apt to think of the
African as a stupid person whose ignorance of nature is only equalled
by his fear of it, and who looks on all mishaps as caused by evil
spirits and malignant natural powers. It is much more correct to
assume in this case that the people very early learnt to distinguish
districts infested with malaria from those where it is absent.
This knowledge is crystallized in the
ancestral warning against settling in the
valleys and near the great waters, the
dwelling-places of disease and death. At the
same time, for security against the hostile
Mavia south of the Rovuma, it was enacted
that every settlement must be not less than a
certain distance from the southern edge of the
plateau. Such in fact is their mode of life at the
present day. It is not such a bad one, and
certainly they are both safer and more
comfortable than the Makua, the recent
intruders from the south, who have made USUAL METHOD OF
good their footing on the western edge of the CLOSING HUT-DOOR
plateau, extending over a fairly wide belt of
country. Neither Makua nor Makonde show in their dwellings
anything of the size and comeliness of the Yao houses in the plain,
especially at Masasi, Chingulungulu and Zuza’s. Jumbe Chauro, a
Makonde hamlet not far from Newala, on the road to Mahuta, is the
most important settlement of the tribe I have yet seen, and has fairly
spacious huts. But how slovenly is their construction compared with
the palatial residences of the elephant-hunters living in the plain.
The roofs are still more untidy than in the general run of huts during
the dry season, the walls show here and there the scanty beginnings
or the lamentable remains of the mud plastering, and the interior is a
veritable dog-kennel; dirt, dust and disorder everywhere. A few huts
only show any attempt at division into rooms, and this consists
merely of very roughly-made bamboo partitions. In one point alone
have I noticed any indication of progress—in the method of fastening
the door. Houses all over the south are secured in a simple but
ingenious manner. The door consists of a set of stout pieces of wood
or bamboo, tied with bark-string to two cross-pieces, and moving in
two grooves round one of the door-posts, so as to open inwards. If
the owner wishes to leave home, he takes two logs as thick as a man’s
upper arm and about a yard long. One of these is placed obliquely
against the middle of the door from the inside, so as to form an angle
of from 60° to 75° with the ground. He then places the second piece
horizontally across the first, pressing it downward with all his might.
It is kept in place by two strong posts planted in the ground a few
inches inside the door. This fastening is absolutely safe, but of course
cannot be applied to both doors at once, otherwise how could the
owner leave or enter his house? I have not yet succeeded in finding
out how the back door is fastened.