A drive to overturn the federal ban on home distillation could give the Supreme Court a chance to curb Congress’s Commerce Clause power.
John Ream seeks to undertake a task that many would deem simple: producing his own spirits at home. Since the nation’s founding, Americans have pursued the craft of distilling on private property for personal use. Some of the most celebrated figures from the founding era—George Washington, James Madison, and Patrick Henry—distilled alcohol on their land, and in contemporary times, activities such as homebrewing have been legal for decades.
Yet for more than a century and a half, home distilling has remained unlawful. The Supreme Court could be poised to intervene soon.
The origin of the dispute stretches back roughly 150 years. In 1868, Congress criminalized the use or possession of a still or boiler “for the purpose of distilling spirits” inside a dwelling or in any shed, yard, or enclosure connected with such dwelling. The stated rationale for the ban was to ease the collection of taxes from authorized commercial distillers. While hobbyists have long criticized this federal prohibition on distilling, it is now receiving renewed attention, particularly regarding what it reveals about the scope of federal power today.
In 2024, Ream, with support from the Buckeye Institute, challenged the federal distilling prohibition. After all, if Congress can bar Ream from making a product for personal use within his own home, where might its power end?
The government has advanced two principal defenses to defend the ban: first, that the prohibition falls within Congress’s Article I taxing power, and second, that it is permissible under the Interstate Commerce Clause, which authorizes Congress to regulate commerce “among the several states.”
Under the government’s theory, these two provisions—even when read in tandem with the Constitution’s Necessary and Proper Clause, which authorizes Congress to enact laws that are “necessary and proper” for executing its enumerated powers—grant Congress the authority to prohibit Ream from operating a modest home still for personal spirit production.
Earlier this year, two federal circuit court decisions arrived at divergent conclusions about the distilling prohibition. In the U.S. Court of Appeals for the 6th Circuit, Ream lost, with the court accepting the government’s claim that home distilling can be barred under the taxation power and the Necessary and Proper Clause. In a companion case in the 5th Circuit, however, the taxation theory was rejected.
Because these two rulings have created a so‑called “circuit split,” many expect the Supreme Court to step in and issue a definitive ruling. Yet, while the government’s troubling argument based on the taxation power in these cases has drawn substantial attention—this site among others has covered it extensively—less has been written about the government’s secondary defense anchored in the Commerce Clause.
Neither lower court expressly addressed the Commerce Clause. But the government’s alternative defense remains alive on appeal and could be resolved by the Supreme Court. A ruling on this point could prove to be the most consequential Commerce Clause decision since NFIB v. Sebelius (2012), in which the Court found that the individual mandate under the Affordable Care Act did not qualify as a valid exercise of congressional power under the Commerce Clause (even though the Court ultimately sustained the mandate by other means). People who care about federalism should hope the Supreme Court seizes this opportunity to reimpose limits on the federal government’s reach in interstate commerce.
The core of that debate traces back to the Court’s infamous 1942 ruling in Wickard v. Filburn, which held that a farmer named Roscoe Filburn could be barred from growing wheat for home consumption. The Court adopted the “aggregation principle,” arguing that if farmers like Filburn were allowed to cultivate wheat for personal use in aggregate numbers, such activity could exert a substantial effect on interstate commerce (since those farmers would presumably substitute their own wheat for purchases on the open market).
The general idea here, though, is that Wickard stretched the Commerce Clause far beyond its original comprehension—yet it did address production on a farm of a substantial size. (Filburn cultivated 11.9 additional acres of wheat for home use.)
The 2005 ruling in Gonzales v. Raich, however, pushed the Commerce Clause to its outer edge.
In Raich, the Supreme Court invoked the Commerce Clause to uphold the federal government’s authority to criminalize the production of homegrown cannabis. According to the Court, Congress could regulate purely local activities that are part of an economic “class of activities” that have a “substantial effect on interstate commerce.”
The flaw with this analysis is that it substitutes the broader notion of “economic activity” for the Constitution’s actual text—that Congress may regulate “commerce” among the states. While the Founding-era use of the word “commerce” distinguished it from the production or manufacture of a product, the Court labeled production and manufacture as “quintessentially economic” and therefore within an expansive interpretation of the Commerce Clause.
This effectively rewrote the Constitution by replacing the word “commerce” with “economics,” a much broader term. If Ream distills his own liquor, the theory goes, he might be less inclined to buy liquor on the open market. And if more would-be home distillers follow his example, there could be a “substantial effect” on interstate commerce.
Under that interpretation, the reach of the federal government could extend far beyond its current boundaries. In an amicus brief filed with the Court, my colleagues at the Manhattan Institute, Ilya Shapiro and Trevor Burrus, note that this same reasoning could theoretically reach “virtually every other household activity,” granting federal authority to regulate “all ordinary household life.”
Consider a home herb garden: it could lead a family to purchase fewer herbs at the grocery store. A stay-at-home parent could displace paid childcare. A homeschooling family might forgo tuition at a nearby private school. If taken to its logical extreme, the Court’s analysis could justify federal intrusion into each of these spheres of domestic life, effectively erasing any real limits on the federal government’s Commerce Clause power entirely.
In that sense, Ream’s case presents the Court with an opening to overturn Raich and to affirm that Congress’s authority under the Commerce Clause has meaningful bounds. (Notably, this would not require overturning existing precedents such as Wickard.)
The Supreme Court is likely to hear Ream’s case, though it remains uncertain whether it will weigh in on the Commerce Clause issue. Those who favor a restrained federal government should hope that it does.
