Whiskey rebellion over 1868 law on home distilleries heads to the Supreme Court

By John Fritze, CNN

(CNN) — When John Ream got into brewing beer at home nearly two decades ago, starting out was as easy as opening the kit his wife bought for him as a gift.

But the Ohio engineer’s plans ran dry when he tried to switch to making whiskey. That’s because a 160-year-old federal law bars Americans from making distilled spirits at home. Ream could have faced jail time if he followed through and was caught, and risk losing his home. Instead of pouring himself a stiff drink, he sued.

“Brewing is a nice blend of science and art, and being able to combine different flavors together,” Ream told CNN in an interview, adding that he did not intend to sell his creations. “I would like to take the same skills that I’ve learned and try my hand at distilling.”

The Supreme Court agreed on Monday to decide if the federal government may bar people from distilling liquor at home in an appeal filed by the Trump administration after the 5th US Circuit Court of Appeals ruled that the prohibition, “while venerable,” violated the necessary and proper clause of the Constitution.

The justices technically held Ream’s separate appeal, which followed a decision from the 6th Circuit that upheld the federal ban. But Ream’s case – and his ability to distill at home – is sure to be influenced by the outcome of the Justice Department appeal. The Supreme Court will likely decide the DOJ case next year, and then send Ream’s appeal back to lower courts for additional review.

The government’s appeal dealt with a Texas group called Hobby Distillers Association and individual members that wanted to distill spirits at home. One of them received a letter from the Alcohol and Tobacco Tax and Trade Bureau, part of the Treasury Department, threatening a $500,000 fine.

Ream’s lawyers, who are also challenging the law in the DOJ case, say the outcome of the case could have broad implications beyond making booze. The ban was enacted in 1868 ostensibly to limit rampant tax evasion by commercial distillers. But under that theory, Ream argues, the government could ban any number of activities at home – baking, sewing, remote work – simply by taxing it and citing evasion as a justification.

The government collected $6 billion in revenue from the tax in 2024.

A trade group representing distilled spirit industry said that it “appreciates the enthusiasm” of home distillers, but warned of the risks of making liquor at home.

“The distillation process can be quite dangerous, including risk of explosion, burns, fires, and more,” said Courtney Armour, chief legal officer at the Distilled Spirits Council. “Furthermore, if not produced properly, the finished product can cause blindness or death. In a home distilling setting, these dangers would not just be limited to the individuals engaging in the production but also their neighbors in the surrounding area.”

Helped cover Civil War costs

Federal law bans the making of distilled spirits in any “dwelling house,” shed or yard. The Justice Department said the provision was intended to head off evasion of federal excise taxes that were levied on distilled spirits for much of the nation’s history and were revived in the mid-19th century to help pay for the cost of fighting the Civil War.

There’s no dispute that Congress has the power to levy the tax. The Justice Department argues that lawmakers’ authority to ban home distilleries flows from the Constitution’s necessary and proper clause, which gives Congress broad leeway to pass laws required to carry out its enumerated powers.

“Congress restricted home distilling because a distiller can more easily conceal a distilling operation or thwart necessary inspections — thereby evading the requisite tax — if the still is located in a dwelling-house or connected structure,” the Trump administration told the justices in court papers.

But Ream and a group of would-be distillers argue that the biggest problem with tax evasion at the time was not home distillers but commercial distributors who found it cheaper to bribe revenue agents than pay the federal tax. They say that the prohibition on homemade whiskey was really a sop to the temperance movement in exchange for lowering the tax.

“There’s not much in the record that supports their theory that the home distilling prohibition had anything to do with tax evasion,” said Robert Alt, president of The Buckeye Institute, which is representing Ream and the others challenging the ban at the Supreme Court. “This prohibition seemed to be probably a political logroll,” he said, so that lawmakers could avoid looking soft on liquor as they made other changes to the way the excise tax worked.

Ream also raised a broader challenge to the ban, questioning the government’s effort to justify it under Congress’ power to regulate interstate commerce. Holding off on Ream’s case suggests the justices weren’t yet ready to address that separate argument.

While the Justice Department notes the government’s long history of taxing liquor, several conservative groups pointed out that there is also a healthy history of the founding fathers distilling whiskey, brandy and other spirits at home. People visiting Mount Vernon in Virginia can tour George Washington’s distillery and even purchase bottles produced at the site.

As president, Washington moved to quell the Whiskey Rebellion of 1794. By the time he died a few years later, his estate operated one of the largest distilleries in the nation. It is a point that several of the conservative justices, who have sharpened the court’s focus on the founding era, could note during arguments. When the court heard arguments earlier this year in a challenge to a federal law that permitted police to disarm regular drug users, Justice Neil Gorsuch led a soliloquy about the founders’ drinking habits.

“John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day,” Gorsuch told the attorney representing the Trump administration in March. “Are they all habitual drunkards who would be properly disarmed for life under your theory?”

Penalties for violating the home distillery ban are severe. They include criminal fines and up to five years in prison. A violator’s home would also be subject to forfeiture.

Two federal appeals courts reached different outcomes after reviewing the home distillery ban. The Louisiana-based 5th US Circuit Court of Appeals decided that, “while venerable,” the prohibition violated the necessary and proper clause. But the Cincinnati-based 6th Circuit came to the opposite conclusion, and it brushed off the idea that its decision would logically allow the government to ban other types of activities at home.

That’s because, the appeals court said, alcohol is essentially in a class by itself.

“Indeed, rules concerning alcohol more generally are unique as to the evasion that often accompanies them,” the 6th Circuit wrote. “From excise taxes, to Prohibition, to the use of fake IDs to obtain alcohol (itself almost a rite of passage for some generations), to moonshiners even today.”

This story has been updated with additional information.

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