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Thursday, July 02, 2020

Sleeping Under Bridges and Stealing Bread

Concurring in Espinoza, Justice Alito quoted Anatole's France's famous line that       "[t]he law, in its majestic equality, equally forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." We all know this quote and judges have used this in many opinions. I started to wonder, though. Who was France? What was the context for the quote? Why are people citing this, and what are they citing it for? DING, DING, DING. Potential law and literature article here. So I started digging.

First, Anatole France was a famed poet, journalist, and novelist. He won the Nobel Prize for Literature in 1921 and died in 1924. France was a socialist who supported the Russian Revolution. (It's kind of ironic, therefore, to see him quoted by some conservative judges.)

The "bridges" quote comes from France's novel "The Red Lily." Here is the entire passage:

Choulette wished to express in it human misery, not simple and touching, such as men of other times may have felt it in a world of mingled harshness and kindness; but hideous, and reflecting the state of ugliness created by the free-thinking bourgeois and the military patriots of the French Revolution. According to him the present regime embodied only hypocrisy and brutality.

“Their barracks are a hideous invention of modern times. They date from the seventeenth century. Before that time there were only guard-houses where the soldiers played cards and told tales. Louis XIV was a precursor of Bonaparte. But the evil has attained its plenitude since the monstrous institution of the obligatory enlistment. The shame of emperors and of republics is to have made it an obligation for men to kill. In the ages called barbarous, cities and princes entrusted their defence to mercenaries, who fought prudently. In a great battle only five or six men were killed. And when knights went to the wars, at least they were not forced to do it; they died for their pleasure. They were good for nothing else. Nobody in the time of Saint Louis would have thought of sending to battle a man of learning. And the laborer was not torn from the soil to be killed. Nowadays it is a duty for a poor peasant to be a soldier. He is exiled from his house, the roof of which smokes in the silence of night; from the fat prairies where the oxen graze; from the fields and the paternal woods. He is taught how to kill men; he is threatened, insulted, put in prison and told that it is an honor; and, if he does not care for that sort of honor, he is fusilladed. He obeys because he is terrorized, and is of all domestic animals the gentlest and most docile. We are warlike in France, and we are citizens. Another reason to be proud, this being a citizen! For the poor it consists in sustaining and preserving the wealthy in their power and their laziness. The poor must work for this, in presence of the majestic quality of the law which prohibits the wealthy as well as the poor from sleeping under the bridges, from begging in the streets, and from stealing bread. That is one of the good effects of the Revolution. As this Revolution was made by fools and idiots for the benefit of those who acquired national lands, and resulted in nothing but making the fortune of crafty peasants and financiering bourgeois, the Revolution only made stronger, under the pretence of making all men equal, the empire of wealth. It has betrayed France into the hands of the men of wealth. They are masters and lords. The apparent government, composed of poor devils, is in the pay of the financiers. For one hundred years, in this poisoned country, whoever has loved the poor has been considered a traitor to society. A man is called dangerous when he says that there are wretched people. There are laws against indignation and pity, and what I say here could not go into print.

The first American judge to quote the bold print was Justice Frankfurter, in his concurring opinion in Griffin v. Illinois. (I'll have more on that after I go through all of the other court references.) Why this quote became famous is not as clear.

To make one simple observation about France's quote, the line directly challenges the idea that formal equality is sufficient for justice. Yet there are many Supreme Court opinions that insist upon formal equality as the relevant standard. Can that be reconciled. If so, how?

Posted by Gerard Magliocca on July 2, 2020 at 09:10 AM | Permalink


From my 1981 college textbook:

It is, of course, true that a given general rule may bother some people less and other people more. Those not desiring to kill anybody are quite unperturbed by laws against murder. But what did Anatole France mean to suggest? What is the alternative to "majestic equality" or, as we have termed it, generality? If discrimination is allowed in laws, if they need not apply to "all who," is it the poor who are likely to be singled out for preferential treatment? The political system in which this could happen has not yet been invented, and political philosophers from Plato to Marx and beyond would howl with derision at anybody naive enough to return a "yes" to this question.

The valid point in France's statement is that the rule of law by itself is not enough to guarantee good government. It is quite possible to imagine general rules which would be extremely obnoxious to most members of the community. A requirement that government impose sanctions only on people duly convicted of violating general rules of action therefore restricts government from moving in some directions but not in others. Likewise democracy prevents government from doing some things, but still leaves immense scope for official abuses. Only when democracy is combined with the rule of law are those who govern boxed in sufficiently to make reasonably good government likely.

Posted by: Paul F. deLespinasse | Jul 11, 2021 8:28:14 PM

Just link to the ruling:


Posted by: El roam | Jul 2, 2020 11:18:21 AM

Let alone, while sealing actually his concurring one, with that phrase or line. No more than sort of paraphrase or metaphoric tool.

Posted by: El roam | Jul 2, 2020 10:25:01 AM

Justice Alito in that case of Espinoza is only reminded about that famous line, it was simply crossing his mind, even not as dicta. Suddenly recalled that line. But, nothing substantial. There is no need to make Fed case out of it. I quote from his concurring:

"The argument that the decision below treats everyone the same is reminiscent of Anatole France’s sardonic remark that “‘[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’” J. Cournos, A Modern Plutarch 35 (1928). "

So, he wrote: " is reminiscent....". There is no need to panic here. Anyway, it is rather a myth, to claim that we are all equal in legal terms, or in the eyes of the lawmaker. It is not that simple. It is much more complicated. For the law, many times, implies positive discrimination, or corrective one. Or, simply grants immunity to officials ( like prosecutors, while discharging their duty to prosecute). It is not that simple, Although one may claim, that it is rather the rule, over exception to it.


Posted by: El roam | Jul 2, 2020 10:20:40 AM

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