In Responsible Drinking, published ten years after Prohibition and three years before its repeal, Binkley proposed a new legal framework for regulating the consumption of liquor. Criminalizing the liquor trade had manifestly failed: liquor still flowed and the industry had been taken over by organized crime. A New York Times editorial during the 1928 presidential campaign summed it up:
A Congress largely composed of hypocrites, Dry-Wets by the million, constant bribery of officials, the virtual impotence of a statute fitfully and sporadically enforced at monstrous expense, the spy, the informer, careless frequent infringement of the rights of the citizen; the young trained to regard the breaking of one law as a distinction, almost a virtue; the degeneration of the public conscience: these are among the symptoms of a moral and social corruption more insidious than the official or financial sort. The latter is temporary. The former is getting to be permanent and growing worse.1
There was a growing sense of urgency around the search for a solution.
Binkley reviewed the current proposals for removing Prohibition as a political distraction: enforce the law as written, tacitly nullify it through non-enforcement, modify it via plebiscite, or advance the discussion by means of education. Binkley’s “modest proposal” (originally suggested by his wife Frances Binkley) was to focus instead on the main problem that the regulation of alcohol was intended to solve: to protect those who were injured by common drunkenness. In an article proposal to the New Republic he wrote:
The poor washerwoman, wife of the drunkard, for whose sake the country was voted dry, was never given a cause of action for civil damages against the bloated bar-keeper who, as the temperance literature told us, was absolutely and directly responsible for her suffering.2
The solution proposed in Responsible Drinking would replace the criminal laws with a system of civil liability similar to what was in place for automobiles and common carriers: drinkers and sellers would be licensed, and sellers would be liable (individually and as an industry) for civil damages to indemnify those who suffered harm from their products. A moderate drinker could enjoy an innocent glass, but a drunkard would lose his drinking license, and the tavernkeeper who sold him the liquor could be sued by the drunkard’s wife if the rent money was drunk away. In this way it would be as difficult for a drunkard to buy a drink as it was for a bankrupt to cash a bad cheque. Binkley did not consider this a complete solution – “the law should grow with experience, and should reveal a constant adaptation of means to end” (p.154) – but suggested it would sweep away the criminal infrastructure of the liquor industry and would attend to the actual social harms of alcohol.
In constructing this proposal, Responsible Drinking redeploys a line of argument which Binkley had developed in a very different context: the interpretation of the “war guilt” clause (Art. 231) in the Treaty of Versailles. There he dealt with the same themes of criminal vs civil responsibility, tacit nullification of statutes, and the emergence of a collective will from a community of individuals. Through the 1920s the clause had been interpreted, especially in Germany, as a forced admission of criminal intent on Germany’s part; but Binkley argued against this:
The article is rather an assumption of liability to pay damages than an admission of war guilt. It is more analogous to the declaration of a man who undertakes to pay all the cost of a motor accident than to the plea of guilty entered by an accused criminal.“3
In the one case Germany was held criminally responsible for imposing the war on the Allies; in the other the liquor industry was held criminally responsible for selling drink to the washerwoman’s husband. In both cases the misconduct would be better dealt with by considering it a tort instead of a crime.
Binkley brought some varied personal history to the liquor problem. The back cover blurb for Responsible Drinking (printed verbatim from notes he sent to the publisher) outlined his involvement in Prohibition advocacy as a teenager in California, and described the speech he gave in a competition at Stanford in 1917 sponsored by the National Intercollegiate Prohibition Association, for which he won a prize of $50. In France with the army in 1918-19, however, he received “excellent tutelage in drinking. The Americans drank heavily, and the French drank well.” National Prohibition went into effect a month after Binkley returned to the U.S., but he took advantage of the exemption for home brewing for personal consumption. His recipe for fig wine was in demand among his friends; a batch was brewed at Tahoe in 1928 by his Stanford associates Carl Wilhelmson and John Steinbeck.4 After the Binkleys moved to Manhattan gin parties were common in their circle of friends, and in Italy in the summer of 1929 they enjoyed the wonderful variety of good wines. Binkley complained when he returned: “I am spoiled for these home brews. After Frascati, and Lacrymae Christi! what can we do.”5 What he did was order the makings of ten gallons of port from the California Vineyards Co.6 He wrote Responsible Drinking, he says in the blurb, “to expiate the offence of having been so certain, upon such slight evidence, that Prohibition would be so excellent a thing for the country.”
Responsible Drinking was the sequel to an article Binkley published in the New Republic shortly before he and Frances left for Italy in the spring of 1929. “The Ethics of Nullification”7 argued for the legitimacy of nullification as a feature of the Anglo-Saxon legal tradition. He was no doubt motivated by charges brought by the Drys that Alfred E. Smith, the Democrat nominee in the 1928 presidential election (a Catholic and a Wet), intended to modify the Volstead Act, which amounted to nullifying the Eighteenth Amendment. Frances Binkley avidly supported Smith and persuaded her husband to join her, despite Herbert Hoover’s claim on their loyalty as a patron of their beloved Stanford and founder of the Hoover War Library where Binkley had worked. Binkley wrote to Stanford friends: “Frances was a convinced Smith adherant almost from the first; I came into the fold at the last moment. Not that I loved Caesar less but that I loved Rome more.”8 Hoover’s inauguration speech provided the theme for the article: Hoover argued that disrespect for one law led inevitably to contempt for all, and Binkley responded that people knew the difference: “The mountaineer who shoots deer out of season does not drop into hog-stealing”.9 Nullification could therefore be a legitimate response when the legislature strayed too far from community feelings.
The nullification article was a success. It was republished or editorialized in several newspapers.10 The Massachusetts Law Quarterly reprinted it (under Binkley’s original title “Nullification and the Legal Process”).11 This impressed the president of Smith College, who had just offered Binkley an assistant professorship:
For a long time I have been looking for a treatment of that issue on the lines which you follow, and this is the first time I have found it. Your point seems to me of great significance and I am especially interested that a law journal should want to reprint it.“12
A number of invitations to write books followed, including a flattering letter from the eventual publisher of Responsible Drinking, James Henle at Vanguard Press: “We feel that we should like to add to our list an author who can write at once so profoundly and so lucidly.”13 Vanguard under Henle was pushing a number of progressive agendas: in 1930 it also published the sex education campaigner Mary Ware Dennett’s Who’s Obscene?, Emanuel H. Levine’s The Third Degree: A Detailed Account of Police Brutality, and the letters of Sacco and Vanzetti. Binkley began to think of a topic for a book.
The idea for Responsible Drinking came from Frances. Binkley described it in a letter in late April 1929 when the nullification article was about to come out:
Frances has made a suggestion to which I am turning my mind. Why not use the law of torts to discipline the liquor industry as it is used, for instance to insure caution and safety by common carriers.14
Binkley took the idea to Vanguard when he returned to New York from Rome in the fall. The contract was negotiated by Binkley’s agent Natalie Davison in the spring of 1930, and the book was written in a few weeks between March and May (incorporating “The Ethics of Nullification” as chapter III). The $300 advance financed the Binkleys’ west coast trip that summer, just as the advance for What is Right with Marriage covered their Italian trip the year before.15 Responsible Drinking was published in October 1930.
And the book failed. Binkley and Henle might have taken warning from the response to Davison’s attempt to syndicate some of the chapters: Harper’s Magazine responded that “this subject has been argued to death in our columns”, and American Mercury said the same.16 The book was reviewed positively in the Saturday Review, the New Republic and the American Journal of Sociology,17 but, as Henle fretted, it failed to ignite controversy.18 The situation wasn’t helped by the Saturday Review’s reviewer’s decision to conceal the actual solution: “like the dénouement of a novel, this should be left for the reader to discover for himself.” The book received a flurry of publicity in April 1931 when an NEA syndicated feature was carried by several newspapers, with a cartoon and a photo of the author (e.g. in the Manitowoc Herald-Times).19 But by the end of 1931 it had sold only about 350 copies (not nearly enough to cover Binkley’s advance), and was soon remaindered. Henle wrote to Binkley:
There seems to be a tradition that books dealing with the liquor question don’t sell. It may be that this tradition is simply too strong for us.
I regret this not only because of our loss on the book, which is substantial, but primarily because the book deserved an infinitely better fate.20
Vanguard sold the plates for scrap in 1936 and did not renew the copyright when it came due. Franklin D. Roosevelt ran for president on a repeal platform in 1932, and a year later Prohibition slipped away, with an ease which must have astonished the partisans of the 1928 election as much as today’s advances in LGBTQ rights have astonished us.
The book was not a great asset to Binkley in his academic career. When he was hired away from Smith College by Western Reserve University while Responsible Drinking was in press, the hiring committee expressed the hope that a full professor’s salary would “ease the pressure for pot-boilers” like What is Right with Marriage.21 What must they have thought when Responsible Drinking appeared shortly after Binkley’s arrival in Cleveland? Still, it shows a stage in the trajectory of his thinking. In its rebalancing of the powers of people and legislature, it looks forward to Binkley’s interest in fostering democratic culture and defending it against fascism in “New Tools for Men of Letters” and “History for a Democracy”. Alongside the democratic emphasis of these essays it shows his technocratic bent, seeking solutions in the planning of experts with a willingness for social experimentation. It was Binkley’s first attempt at advocating for public policy, something he took up in the 1930s both in writing to defend the New Deal (as in “An Anatomy of Revolution” and “The Cultural Program of the W.P.A.”) and at the practical level, in sponsoring and managing WPA programs such as the Annals of Cleveland and the Historical Records Survey which were influential across the country.
Doc. 876: RCB to Bruce Bliven, 1929-05-12.↩
Robert C. Binkley and August C. Mahr, “A New Interpretation of the ‘Responsibility’ Clause in the Versailles Treaty,” Current History 24, no. 3 (June 1926): 398. Mahr, a professor of German, contributed to the philological argument, but the historical and political thought is Binkley’s. He developed it in a series of articles: “Revision of World War History,” Historical Outlook 19, no. 3 (March 1928): 109–13; “War Responsibility and World Ethics,” New Republic, January 9, 1929; “The ‘Guilt’ Clause in the Versailles Treaty,” Current History 30, no. 2 (May 1929): 294–300.↩
Doc. 2151: Carl Wilhelmson to RCB, 1928-02-06: “we made a lot of that wine of yours, and have a barrel now full of it, aging in a moving stream. We shall open it soon, and sample it. It certainly looks fine, and I hope it will be as good as yours.” Wilhelmson doesn’t say who “we” were but at Camp Richardson, where the letter was dated, it can hardly have excluded Steinbeck.↩
Doc. 355: RCB to Frances, 1929-10-19.↩
Doc. 1062: receipt for $27.50, 1929-10-01.↩
The New Republic, May 1, 1929, pp. 297-300.↩
Doc. 1227: RCB to William and Lucy Adams, 1929-01-16.↩
“Ethics of Nullification”, p.299.↩
Reprinted as “The Ethics of Nullification,” St. Louis Post-Dispatch, May 12, 1929, Editorial Section: 2B. Binkley’s name did not appear: the byline is simply “From the New Republic”. An editorial (positive) based on the article was reprinted from the Norfolk Pilot as “Disrespect for Law,” The Bee (Danville, VA), May 13, 1929: 6; another (negative) appeared in Chester Rowell’s column in the Oakland Tribune, May 5, 1929: 3. The opening sentence was clipped as column filler in several papers, e.g. The News-Herald (Franklin, PA), May 21, 1929: 4: “The aphorism that disrespect for one law leads to contempt for all is equally useful to the drys, who argue that unrepealable laws should be enforced, and to the wets, who argue that unenforceable laws should be repealed.”↩
Massachusetts Law Quarterly 14 (May 1929): 109–15.↩
Doc. 1721: William A. Neilson to RCB, 1929-05-20.↩
Doc. 2029: James Henle to RCB, 1929-05-10.↩
Doc. 1078: RCB to Robert T. Crane, 1929-04-25.↩
Doc. 2902: RCB to James Henle, 1930-05-07.↩
Doc. 2840: Frederick L. Allen (Harper’s) to Natalie W. Davison, 1930-04-15; Doc. 2841: Charles Angoff (American Mercury) to Natalie W. Davison, 1930-05-09: “The prohibition piece is very good, but we have printed so much about the subject of late and have so much more in type that we have decided to put a stop to it for the present.”↩
John Wurts, “A Way Out,” The Saturday Review of Literature, December 20, 1930: 469; Carroll D. Clark, “Responsible Drinking,” American Journal of Sociology 37, no. 2 (1931): 341; James Rorty, “The Wet-Dry Nuisance,” New Republic, January 7, 1931: 226.↩
Doc. 4628: James Henle to RCB, 1930-11-28.↩
E.g. “Make Liquor Traffic Police Itself by Making the Seller Responsible for Damage Done by Drunks!,” Manitowoc Herald-Times, April 25, 1931: 6.↩
Doc. 4582: James Henle to RCB, 1931-04-13.↩