Processes of Constitutional

Decisionmaking: Cases and Materials

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 the First Amendment, Yale Law School; Akhil Reed Amar, Sterling
Professor of Law and Political Science, Yale Law School; Reva B.
Siegel, Nicholas deB. Katzenbach,
Professor of Law, Yale Law School.
Description: Seventh edition. | New York : Wolters Kluwer, [2018] | Series:
Aspen casebook series | Includes bibliographical references and index.
Identifiers: LCCN 2017060739| eISBN 9781454897613
Subjects: LCSH: Constitutional law—United States. | Judicial review—
United States. | Separation of powers—United States. | LCGFT:
Casebooks.
Classification: LCC KF4550 .B723 2018 | DDC 342.73—dc23
LC record available at https://lccn.loc.gov/2017060739
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 To Iris, Hilary, and Jeremy
for the countless hours discussing
the issues in this book—P.B.

To the memory of Robert McCloskey,

a beloved teacher and mentor;
to Paul Brest, a valued friend whose invitation
to collaborate with him on the second edition
of this casebook substantially shaped
my future intellectual development;
and to the University of Texas Law School,
which for a full third-of-a-century has been
remarkably nurturing in every way—S.L.

To my parents,
Bernard and Bettye Balkin,
who gave me their love
and an education in the law—J.B.

To my students for their inspiration

and to my family—Vinita and Vikram, mom and dad,
mummy and poppa, brothers and sisters—
for their sustenance—A.R.A.
 To Yale, my nephew and my students,
in the belief that possibility lives in memory—R.S.
 Summary of Contents

Contents
Preface
Acknowledgments
Editorial Note

The Constitution of the United States

PART ONE
INTRODUCTION: BACKGROUND TO THE CONSTITUTION
Chapter 1 The Bank of the United States: A Case Study
Chapter 2 The Constitution in the Early Republic
Chapter 3 Are We a Nation? The Jacksonian Era to the Civil War, 1835-
1865
Chapter 4 From Reconstruction to the New Deal: 1866-1934

PART TWO
CONSTITUTIONAL ADJUDICATION IN THE MODERN WORLD
Chapter 5 The New Deal and the Civil Rights Era
Chapter 6 Federalism, Separation of Powers, and National Security in the
Modern Era
Chapter 7 Race and the Equal Protection Clause
Chapter 8 Sex Equality
Chapter 9 Liberty, Equality, and Fundamental Rights: The Constitution,
the Family, and the Body
Chapter 10 The Constitution in the Modern Welfare State
Table of Justices
Table of Cases
Index
 Contents

Preface
Acknowledgments
Editorial Note

The Constitution of the United States

PART ONE
INTRODUCTION: BACKGROUND TO THE CONSTITUTION
Note: The “Constitution of Conversation” and the “Constitution of
Settlement”

Chapter 1
The Bank of the United States: A Case Study
I. Early Background
II. The First Bank of the United States
A. Madison’s View [James Madison’s Speech to the House of
Representatives (1791)]
B. The Attorney General’s Opinion
C. Jefferson’s Critique of the Bank
D. Hamilton’s Defense
Alexander Hamilton, Opinion on the Constitutionality of
an Act to Establish a Bank (1791)
Discussion
III. The Second Bank
IV. Judicial Examination of Congress’s Authority to Create the Bank
Note on Reading and Editing Cases
McCulloch v. Maryland [The First Question]
A. The Reaction to McCulloch
 B. Marshall’s Methods of Constitutional Interpretation
Note: Uncertainties of Meaning
1. Ambiguity
2. Vagueness
3. Nonliteral Usage
V. The States’ Power to Tax the Bank of the United States
McCulloch v. Maryland [The Second Question]
Discussion
VI. Ohio Dissents
VII. The Demise of the Second Bank
Andrew Jackson, Veto Message (July 10, 1832)
Discussion
Walter Dellinger, Presidential Authority to Decline to
Execute Unconstitutional Statutes (November 2, 1994)
Discussion

Chapter 2
The Constitution in the Early Republic
I. The Constitution During the Washington Administration
II. Early Struggles over State and National Sovereignty: Chisholm v.
Georgia and the Eleventh Amendment
Chisholm v. Georgia
Note: The Eleventh Amendment
III. The Alien and Sedition Acts and the Kentucky and Virginia
Resolutions of 1798
A. The Alien Act of 1798
B. The Sedition Act
1. The Meaning of the First Amendment
2. The Original Understanding
3. The Republican Response
Discussion
C. The Kentucky and Virginia Resolutions of 1798 and the Doctrine
of Nullification
1. Nullification and Interposition
2. The Nullification Crisis and the “Tariff of Abominations”
Discussion
 Note: Judicial Review Before Marbury: The Supreme
Court in Its Early Years
IV. The Election of 1800
V. Early Political Struggles over the Federal Judiciary
A. Stuart v. Laird and the Elimination of the Intermediate Appellate
Judiciary
Stuart v. Laird
Discussion
B. Marbury and Judicial Review of Legislation
Marbury v. Madison
Discussion
C. Limitations on Judicial Power
1. Jurisdiction Stripping
2. Standing
3. Political Questions
D. Judicial Review in a Democratic Polity
1. The Countermajoritarian Difficulty
2. Justifications for Judicial Review
a. Supervising Inter- and Intra-governmental Relations
b. Preserving Fundamental Values
c. Protecting the Integrity of Democratic Processes
3. The Countermajoritarian Difficulty Challenged
a. The Countermajoritarian Features of the Political Branches
b. The “Majoritarian” Aspects of Judicial Review
Note: Judicial “Good Behavior” and Lifetime Tenure
VI. The Louisiana Purchase
Discussion
Note: The “Marshall Court”
Note: Limiting the President’s Power as Commander-in-
Chief
Discussion
VII. The Protection of Property Rights and the Natural Law Tradition
Fletcher v. Peck
Discussion
Note: Natural Law, Vested Rights, and the Written
Constitution: Sources for Judicial Review
1. The Natural Law Tradition in America
 2. The Judicial Protection of Vested Rights
Calder v. Bull
Discussion
3. The Explicit Federal Constitutional Protection of
Rights
4. The Ninth Amendment
Note: Is Constitutional Law a Comedy or a Tragedy?
Discussion
VIII. American Indians and the American Political Community
Discussion
IX. Women’s Citizenship in the Antebellum Era
Discussion
X. Regulation of the Interstate Economy
Gibbons v. Ogden
Discussion
Note: Federal Preemption
Arizona v. United States
Note: Language, Purpose, and Meaning
1. Language and Purpose
2. Discovering the Adopters’ Purposes
XI. The “General Welfare”
A. The Spending Clause and Disaster Relief
B. Internal Improvements
James Madison, Veto Message (March 3, 1817)
James K. Polk, Veto Message (December 15, 1847)
Discussion

Chapter 3
Are We a Nation? The Jacksonian Era to the Civil War, 1835-1865
I. Interstate and Foreign Commerce and Personal Mobility
A. The States’ “Police Powers” as a Constraint on the National
Commerce Power
Mayor of the City of New York v. Miln
Discussion
B. The Cooley Accommodation
Cooley v. Board of Wardens
 Discussion
Note on Congressional Consent
C. The Privileges and Immunities of State Citizenship and Personal
Mobility Among the States
1. The Privileges and Immunities Clause of Article IV
Corfield v. Coryell
Discussion
2. Interstate Mobility
Crandall v. Nevada
Discussion
II. Slavery
A. The Interstate Slave Trade
Groves v. Slaughter
Note: The United States Mail and American Pluralism
B. Fugitive Slaves
Prigg v. Pennsylvania
Discussion
C. Prelude to Secession
Dred Scott v. Sandford
Discussion
Frederick Douglass, The Constitution of the United States:
Is It Pro-Slavery or Anti-Slavery?
Discussion
D. Judicial Supremacy and Dred Scott: The Lincoln–Douglas Debates
Discussion
III. “And the War Came”: The President as Commander-in-Chief and the
Preservation of the Union
A. The Debate over Secession
1. President James Buchanan Opposes Both Secession and War
2. South Carolina Justifies Its Secession
Declaration of the Immediate Causes Which Induce and
Justify the Secession of South Carolina from the
Federal Union (December 24, 1860)
3. Judah Benjamin Defends Secession
4. Jefferson Davis Takes the Helm of the Confederate States of
America
5. Lincoln Responds and Acts
 Discussion
Texas v. White
Note: The Confederate Constitution
Discussion
B. The Authority of the President to Repel Attacks on the Union
Prize Cases
Discussion
C. Lincoln and the Suspension of Habeas Corpus
1. Chief Justice Taney on the Exclusive Authority of Congress
Ex parte Merryman
2. The President Asserts Executive Authority
Discussion
D. Lincoln: The Great Emancipator
Note: Former Justice Curtis Dissents
Discussion
Note: “Reverence for Law”
Discussion
Note: The Gettysburg Address as Constitutional
Interpretation
The Gettysburg Address (November 19, 1863)
Discussion
E. The Use of Military Tribunals as an Alternative to Trial by Jury
Ex parte Milligan
Discussion

Chapter 4
From Reconstruction to the New Deal: 1866-1934
I. The Reconstruction Constitution
A. History of the Adoption of the Reconstruction Amendments
1. The Thirteenth Amendment
2. The Civil Rights Act of 1866
3. The Fourteenth Amendment
Senator Jacob Howard, Speech Introducing the Fourteenth
Amendment (May 23, 1866)
Discussion
Note: What the Fourteenth Amendment Did Not Say
 Note: The Unusual Procedural History of the Fourteenth
Amendment
Discussion
4. The Fifteenth Amendment
Note: When Did the Civil War End?
B. The Fourteenth Amendment Limited
The Slaughterhouse Cases
Discussion
United States v. Cruikshank
Discussion
Bradwell v. Illinois
Discussion
Note: The “New Departure” and Women’s Place in the
Constitutional Order
Minor v. Happersett
Discussion
Note: The Fourteenth Amendment, Birthright Citizenship,
and American Indians
Note: “The Riddle of Hiram Revels”
Discussion
C. Early Application of the Fourteenth Amendment to Race
Discrimination
Strauder v. West Virginia
Discussion
D. Creation of the State Action Doctrine
The Civil Rights Cases
Discussion
E. Establishment of the “Separate but Equal” Doctrine
Plessy v. Ferguson
Discussion
Charles Black, The Lawfulness of the Segregation
Decisions
Note: The Spirit of Plessy and Black Disenfranchisement
Giles v. Harris
Discussion
II. Creating an “American” Nation
A. American Expansionism, Race, Ethnicity, and the Constitution
 Downes v. Bidwell
Discussion
B. Ethnic Diversity and the Constitution: The Case of Chinese
Immigration
Chae Chan Ping v. United States
Discussion
III. The Rise of the Modern Industrial Order and the Protection of
Economic Rights
A. Economic Disorder and Emergency Powers
In re Debs
Discussion
B. The Rise of Due Process Protection Against State Economic
Regulation
C. The Application of the Bill of Rights to the States
Discussion
D. The Heyday of Police Power Jurisprudence, 1890-1934
Lochner v. New York
1. The Idea of Police Power Jurisprudence
2. The Meanings of “Liberty,” “Property,” and “Due Process”
3. The Scope of the Police Power: Permissible and Impermissible
Objectives
4. Burdens of Proof and Questions of Degree
5. Laissez Faire, Lawyers, and Legal Scholarship
6. A Survey of the Court’s Work
Adkins v. Children’s Hospital
E. Freedom of Contract and the Problem of “Involuntary Servitude”
Discussion
IV. Congressional Regulation of Interstate Commerce and of the National
Economy
A. The Commerce Power
Champion v. Ames [The Lottery Case]
Discussion
Hammer v. Dagenhart
Discussion
Note: On “Prisoner’s Dilemmas” and Centralized
Coordination
 Note: Binary Oppositions and Congressional Ability to
Invoke Its Power Under the Commerce Clause
B. The Taxing Power
Bailey v. Drexel Furniture Co. (The Child Labor Tax
Case)
C. The Spending Power
Discussion
D. The Treaty Power
Missouri v. Holland
E. The Eleventh Amendment and State Sovereign Immunity
Hans v. Louisiana
Discussion
V. “When a Nation Is at War”: World War I and the First Amendment
Discussion
Note: Further Questions on the Constitution and
“Emergency Power” During Time of War
VI. Constitutional Innovation During the Progressive Period
A. The Sixteenth Amendment
B. The Seventeenth Amendment
C. The Eighteenth Amendment
D. The Nineteenth Amendment
E. Constitutional Limits on Article V?
1. Time Limits
Discussion
2. Are There Substantive Limits to Constitutional Amendment?

PART TWO
CONSTITUTIONAL ADJUDICATION IN THE MODERN WORLD
The Evolution of the Bill of Rights and Its “Incorporation” Against the
States

Chapter 5
The New Deal and the Civil Rights Era
I. The Decline of Judicial Intervention Against Economic Regulation
A. 1934
 Home Building & Loan Association v. Blaisdell [The
Minnesota Mortgage Moratorium Case]
Discussion
B. 1935-1937
West Coast Hotel Co. v. Parrish
C. The Modern Doctrine of Economic Due Process
United States v. Carolene Products Co.
Discussion
Williamson v. Lee Optical Co.
Discussion
D. Modern Contract Clause Doctrine
Discussion
E. Modern Takings Clause Doctrine
Jed Rubenfeld, Usings
Discussion
II. The Creation of the New Deal Settlement and the Relaxation of
Judicial Constraints on Congressional Power
A. 1935-1936—The Supreme Court Confronts Roosevelt over
Federal Power
Schechter Poultry Corp. v. United States
Carter v. Carter Coal Co.
Discussion
United States v. Butler
Discussion
Franklin D. Roosevelt, “Fireside Chat” (March 9, 1937)
Discussion
NLRB v. Jones & Laughlin Steel Corp.
Discussion
Franklin D. Roosevelt, Address on Constitution Day,
Washington, D.C. (September 17, 1937)
Discussion
B. The Emergence of Modern Commerce Clause Doctrine
United States v. Darby
Wickard v. Filburn
Discussion
Note: On Constitutional Revolution
C. The Taxing and Spending Power
 Steward Machine Company v. Davis
Discussion
III. National Power in the Civil Rights Era
A. The 1960s Civil Rights Legislation: Commerce Power or
Reconstruction Power?
1. The Civil Rights Movement and the Civil Rights Act of 1964
Discussion
2. Congressional Power to Pass the Civil Rights Bill
Heart of Atlanta Motel v. United States
Katzenbach v. McClung
Discussion
B. The Reconstruction Power in the Civil Rights Era
Note: The Voting Rights Act of 1965
Lyndon B. Johnson, Special Message to the Congress: The
American Promise (March 15, 1965)
Discussion
South Carolina v. Katzenbach
Katzenbach v. Morgan
Discussion
Jones v. Alfred H. Mayer Co.
Oregon v. Mitchell

Chapter 6
Federalism, Separation of Powers, and National Security in the Modern Era
I. Judicial Constraints on Congressional Power
A. The Rehnquist and Roberts Courts: Finding Limits on Federal
Power
1. The Commerce Power
United States v. Lopez
Discussion
National Federation of Independent Business v. Sebelius
[The Health Care Case]
Discussion
United States v. Comstock
Discussion
2. The Taxing Power
 National Federation of Independent Business v. Sebelius
[The Health Care Case]
Discussion
3. The Spending Power
National Federation of Independent Business v. Sebelius
[The Health Care Case]
Discussion
4. The Treaty Power
Bond v. United States
Discussion
5. The Reconstruction Power
City of Boerne v. Flores
Discussion
Akhil Reed Amar, Intratextualism
United States v. Morrison
Discussion
Board of Trustees of the University of Alabama v. Garrett
Discussion
Shelby County, Alabama v. Holder
Discussion
II. Affirmative Limits on Congressional Regulations of State
Governments
A. From the Hughes Court to the Burger Court: Practically No
Limits?
National League of Cities v. Usery
Garcia v. San Antonio Metropolitan Transit Authority
Discussion
B. The Rehnquist Court: Finding Affirmative Limits
Gregory v. Ashcroft
Discussion
New York v. United States
Discussion
Saikrishna Bangalore Prakash, Field Office Federalism
Printz v. United States
Discussion
Note: State Sovereign Immunity
Discussion
 Note: Cooperative (and Uncooperative) Federalism)
III. Interstate Federalism and the National Economy
A. Dormant Commerce Clause
1. Burdensome Laws: The Development of a Balancing Test
2. Facially Discriminatory Laws: The “Per Se Invalidity” Test
3. The Market Participant Exception
4. General Theories of Dormant Commerce
B. Interstate Privileges and Immunities
IV. The Executive Power of the United States
A. The (Non)Prosecution Power
United States v. Cox
Discussion
United States v. Nixon, President of the United States
Discussion
B. The Appointment Power
In re Sealed Case
Morrison v. Olson
Discussion
Edmond v. United States
Discussion
National Labor Relations Board v. Noel Canning
Discussion
C. The Veto Power
Immigration and Naturalization Service v. Chadha
Discussion
D. The Power of the Sword
1. Emergency Power During Wartime
Executive Order: Directing the Secretary of Commerce to
Take Possession of and Operate the Plants and Facilities
of Certain Steel Companies
Youngstown Sheet & Tube Co. v. Sawyer
Discussion
Note: The Power to Wage War
2. Executive Detention
Hamdi v. Rumsfeld
Discussion
3. Military Tribunals
 4. Habeas Corpus for the Guantanamo Detainees
Boumediene v. Bush
Discussion
5. Torture and Presidential Power
Discussion
6. Targeted Killings
7. Diplomatic Recognition
Zivotofsky v. Kerry
Discussion
E. Presidential Privileges and Immunities
F. Presidential Selection
Note: Presidential Impeachment

Chapter 7
Race and the Equal Protection Clause
I. Brown v. Board of Education and the Constitutional Struggle over
Desegregation
A. Background to the School Desegregation Case
Note: Brown and the Cold War
B. The School Desegregation Case
Brown v. Board of Education of Topeka, Kansas
Bolling v. Sharpe
Discussion
Note: A “Dissent” from Brown
Discussion
Note: Brown and the Original Understanding
Discussion
C. Brown’s Legacy, Fulfilled or Betrayed? Four Decades of School
Desegregation
1. Brown II and “All Deliberate Speed”
Brown v. Board of Education (Brown II)
2. “Massive Resistance” to School Desegregation
3. The Political Branches Respond: 1964-1968
4. The Supreme Court Reasserts Itself
5. Swann and Metropolitan Segregation in the South
 6. School Segregation in the North—The Court Confronts the De
Jure/De Facto Distinction
7. The Turning Point—Inter-District Relief
8. An Era of Retrenchment
Missouri v. Jenkins (Jenkins II)
Discussion
II. The Antidiscrimination Principle and the “Suspect Classification”
Standard
A. The Origins of the Suspect Classification Doctrine
1. The Japanese Internment Case
Korematsu v. United States
Discussion
2. The Court Strikes Down Antimiscegenation Statutes
Loving v. Virginia
Discussion
B. The Reach of the Suspect Classification Doctrine
1. Racial Segregation in Prisons
Johnson v. California
2. Family Formation
a. Child Custody Decisions Following Divorce
b. Race-Matching Policies in Adoption
3. Government Collection and Use of Racial Data
Discussion
Note: Four Concepts of “Race”: Status-Based, Formal,
Historical, and Cultural
C. When Is a Decision Made “on the Basis of” Race?
1. Early Cases
Yick Wo v. Hopkins
Ho Ah Kow v. Nunan
2. Brown v. Board of Education and Desegregation
3. The Interplay Between the Fourteenth Amendment and the
Civil Rights Acts
Griggs v. Duke Power Co.
Discussion
4. The Court Separates the Fourteenth Amendment from the Civil
Rights Acts
Washington v. Davis
 Village of Arlington Heights v. Metropolitan Housing
Development Corp.
Personnel Administrator of Massachusetts v. Feeney
Discussion
Note: Commentaries on the Intent Standard
Discussion
5. The Future of Disparate Impact Legislation
Ricci v. DeStefano
Discussion
D. Race and the Criminal Justice System
1. The War on Drugs and the Powder Cocaine/Crack Cocaine
Distinction
United States v. Clary
Discussion
2. Administering Death
McCleskey v. Kemp
Discussion
3. Suspect Descriptions
Brown v. City of Oneonta
Discussion
Note: Racial Profiling and the Equal Protection Clause
E. “Preferential” Treatment for Racial Minorities
1. The Central Issues
2. The Early Cases
Regents of the University of California v. Bakke
3. Affirmative Action from Bakke to Croson
4. Affirmative Action in the Rehnquist Court
City of Richmond v. J.A. Croson Co.
Discussion
Adarand Constructors v. Pena
Note: Originalism and Affirmative Action
5. The Court Reaffirms Bakke
Grutter v. Bollinger
Gratz v. Bollinger
Discussion
6. The Roberts Court Interprets Brown in Light of Affirmative
Action
 Parents Involved in Community Schools v. Seattle School
District No. 1
Discussion
Fisher v. University of Texas at Austin
Discussion
Note: Racial Redistricting and the Equal Protection Clause
F. Citizenship and Alienage Under the Equal Protection Clause
1. The Early Interplay of Race and Alienage
2. Regulation of Aliens by State Governments
Graham v. Richardson
Bernal v. Fainter
Discussion
3. Regulation of Resident Aliens by the Federal Government
Discussion

Chapter 8
Sex Equality
I. The Sex Equality Claims Under the Fourteenth Amendment: Social
Movements and Constitutional Change
A. The Fourteenth Amendment’s First Century
B. Movement Roots of Modern Sex Discrimination Law
Frontiero v. Richardson
Discussion
Note: Reasoning from Race in Frontiero and Beyond
Note: The Equal Rights Amendment
Discussion
Note: The Nineteenth Amendment
II. What Does Intermediate Scrutiny Prohibit?
A. Intermediate Scrutiny, Sex Stereotyping, and Laws Enforcing
Breadwinner/Caregiver Roles
Note: Sex Discrimination and Same-Sex Marriage
Discussion
Note: On Sex, Gender, and Sexual Orientation
B. Intermediate Scrutiny and the Race-Gender Analogy
United States v. Virginia [The VMI Case]
Discussion
 Note: Constitutional Interpretation, Originalism, and Sex
Discrimination
Discussion
Note: Intermediate Scrutiny and Single-Sex Education
Note: Affirmative Action and Intermediate Scrutiny
C. Intermediate Scrutiny and Claims of Sex Difference: Pregnancy as
a Justification for Sex-Differentiated Treatment of Men and
Women
Tuan Anh Nguyen v. INS
Discussion
Sessions v. Morales-Santana
Discussion
III. Distinguishing Sex-Based and Sex-Neutral Policies: Evolving
Perspectives on Pregnancy
A. Criteria for Distinguishing Sex-Based and Sex-Neutral Policies
Personnel Administrator of Massachusetts v. Feeney
Discussion
B. Judicial and Legislative Perspectives on Pregnancy and Sex
Equality: Alternative Understandings
1. Classifications on the Basis of Sex and Pregnancy
Discussion
Note: Differing Approaches to Pregnancy Discrimination
Under the Constitution and Federal Civil Rights Law
Note: Abortion and Equal Protection
2. Congress and the Court: Evolving Understandings of
Pregnancy
Nevada Department of Human Resources v. Hibbs
Discussion
IV. Gender in the Military: Constitutional Change Outside the Courts
A. A Brief History of Women in the Military: The Creation and
Erosion of “Combat Exclusion” Rules
B. The End of the Combat Exclusion?
C. Rostker and the Constitutionality of Gender-Based Conscription
Discussion
V. Other Suspect Bases of Classification: Thinking Outside the “Tiers of
Scrutiny” Model
City of Cleburne, Texas v. Cleburne Living Center
 Discussion
Note: Accommodation as a Norm—The Americans with
Disabilities Act of 1990

Chapter 9
Liberty, Equality, and Fundamental Rights: The Constitution, the Family,
and the Body
I. Historical Roots of Fundamental Rights Adjudication
A. Doctrinal Antecedents
B. Popular and Philosophical Debate About the Criminalization of
Sex
II. Contemporary Fundamental Rights Adjudication
A. The Contraception Case
Griswold v. Connecticut
Discussion
Note: The Reach of Griswold
Eisenstadt v. Baird
Note: Tradition as a Source of Fundamental Rights
Jack M. Balkin, Tradition, Betrayal, and the Politics of
Deconstruction
Discussion
III. Reproductive Rights and Abortion
A. The Decision in Roe v. Wade
Roe v. Wade
Doe v. Bolton
Discussion
Note: Did Roe Cause the Abortion Conflict?
Discussion
B. Abortion and the Equal Protection Clause
Reva Siegel, Reasoning from the Body: A Historical
Perspective on Abortion Regulation and Questions of
Equal Protection
Discussion
C. Decisions After Roe
Planned Parenthood of Southeastern Pennsylvania v.
Casey
 Discussion
D. Abortion Restrictions After Casey
Gonzales v. Carhart [Carhart II]
Discussion
Note: Absolute and Incremental Restrictions on Abortion
Whole Woman’s Health v. Hellerstedt
Discussion
IV. Sexuality and Sexual Orientation
A. Sexual Orientation: Liberty and Equality
1. The Court’s First Ruling on Laws Criminalizing Sodomy
Bowers v. Hardwick
Discussion
2. Bowers Blunted, But Not Reversed
Romer v. Evans
Discussion
3. Bowers Reversed
Lawrence v. Texas
Discussion
Note: Liberty, Equality, and Lawrence
1. Liberty and/or Equality?
2. Liberty versus Equality: A Queer Perspective
3. Dignity in Lawrence
B. Sexual Orientation: Equal Protection and Heightened Scrutiny
Letter from the Attorney General to Congress on
Litigation Involving the Defense of Marriage Act
(February 23, 2011)
Discussion
C. Same-Sex Marriage
United States v. Windsor
Discussion
Obergefell v. Hodges
Discussion
D. Backlash and Social Movements
The Judicial Backlash Thesis
Skeptics of the Judicial Backlash Thesis
Note: The Right to Die and Other Implied Fundamental
Rights
V. The Constitutional Right of Self-Defense
District of Columbia v. Heller
McDonald v. City of Chicago
Discussion

Chapter 10
The Constitution in the Modern Welfare State
I. Does the Constitution Affirmatively Guarantee Any Welfare Rights?
A. The Rights of Indigents in the Criminal Justice System
B. The Creation of Fundamental Interests Under the Equal Protection
Clause
Harper v. Virginia Bd. of Elections
Discussion
Note: Protecting the Poor Through the Fourteenth
Amendment
C. Minimum Needs Rejected
Dandridge v. Williams
Discussion
D. The Right to Education
1. “Equal Provision” of Public Education
San Antonio Independent School District v. Rodriguez
Discussion
2. Is There a Right to Some Minimal Provision of Educational
Resources?
Plyler v. Doe
Discussion
Note: On the Enforceability of “Positive Rights”
Discussion
E. Does the State Have a “Duty to Rescue”?
DeShaney v. Winnebago County Department of Social
Services
Discussion
Note: State Action in the Age of the Welfare State
II. The Procedural Due Process Protection of Entitlements and Other
Nontraditional Property and Liberty Interests: The Basic Doctrine
A. What Procedural Safeguards Are Due?
 Goldberg v. Kelly
Discussion
Note: To What Extent Does Goldberg Rest on Legal
Formality?
III. The Welfare State and Burdens on Interstate Mobility
A. The Right to Travel as a Fundamental Right
Shapiro v. Thompson
B. The Right to Relocate
C. Can the State Give More Welfare to Long-Time Residents Than to
Newcomers?
Discussion
D. Congressional Consent
E. The Court Reconsiders (and Reconceptualizes) Shapiro
Saenz v. Roe
Discussion
IV. Conditioning Spending in the Welfare State — The Problem of
Unconstitutional Conditions
A. Introduction: Rights, Waivers, and Inducements to Change
Behavior

Table of Justices
Table of Cases
Index
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 DANCE ON STILTS AT THE GIRLS’ UNYAGO, NIUCHI

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

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

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

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

NATIVE PATH THROUGH THE MAKONDE BUSH, NEAR

MAHUTA

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

MAKONDE LOCK AND KEY AT JUMBE CHAURO

 This is the general way of closing a house. The Makonde at Jumbe
Chauro, however, have a much more complicated, solid and original
one. Here, too, the door is as already described, except that there is
only one post on the inside, standing by itself about six inches from
one side of the doorway. Opposite this post is a hole in the wall just
large enough to admit a man’s arm. The door is closed inside by a
large wooden bolt passing through a hole in this post and pressing
with its free end against the door. The other end has three holes into
which fit three pegs running in vertical grooves inside the post. The
door is opened with a wooden key about a foot long, somewhat
curved and sloped off at the butt; the other end has three pegs
corresponding to the holes, in the bolt, so that, when it is thrust
through the hole in the wall and inserted into the rectangular
opening in the post, the pegs can be lifted and the bolt drawn out.[50]

MODE OF INSERTING THE KEY

With no small pride first one householder and then a second

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

Some consolation was afforded me by a brassfounder, whom I

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

SMOOTHING WITH MAIZE-COB

CUTTING THE EDGE

 FINISHING THE BOTTOM

LAST SMOOTHING BEFORE

BURNING

FIRING THE BRUSH-PILE

 LIGHTING THE FARTHER SIDE OF
THE PILE

TURNING THE RED-HOT VESSEL

NYASA WOMAN MAKING POTS AT MASASI

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

DRAWING THE BARK OFF THE LOG

REMOVING THE OUTER BARK

 BEATING THE BARK

WORKING THE BARK-CLOTH AFTER BEATING, TO MAKE IT

SOFT

MANUFACTURE OF BARK-CLOTH AT NEWALA

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