A 158-Year-Old Law, Two Conflicting Rulings, and a Constitutional Showdown Nobody Saw Coming
For the better part of 160 years, a law written during the Reconstruction era has made it a federal offense for any American to distill spirits in their own home — even a single bottle of whiskey meant for no one but themselves. That law is now facing its most serious legal reckoning in history, and the stage is set for the United States Supreme Court to settle it once and for all.
In the span of eleven days, two federal appeals courts looked at the same 158-year-old prohibition and reached opposite conclusions. The U.S. Court of Appeals for the Fifth Circuit struck down the federal home distilling ban. The U.S. Court of Appeals for the Sixth Circuit upheld it. That's a circuit split — the kind of direct conflict between appellate courts that the Supreme Court exists to resolve — and the attorneys behind both cases say they fully expect the nation's highest court to take it up.
This isn't a minor regulatory dispute. It touches on the limits of congressional power, the reach of the Commerce Clause, the legacy of New Deal-era constitutional precedent, and the rights of ordinary Americans to pursue a hobby in their own homes. The Wall Street Journal's editorial board has already weighed in. Now the Supreme Court may not have much choice but to do the same.
What the Law Actually Says — and Why It Has Survived This Long
The law at issue dates to 1868 and prohibits any "distilled spirits plant" from operating inside a "dwelling house" or associated shed or yard. On paper, it was written to crack down on moonshining at a time when the federal government was desperate to collect excise taxes after the Civil War left the treasury depleted. In that narrow historical context, it made a certain kind of sense.
But that was 1868. The argument the federal government has used for decades to keep this law on the books is that home distillation is easy to conceal, which makes it a threat to spirits taxation. Let someone make whiskey in their basement, the logic goes, and there's no way to tax it. Without the ban, tax evasion would run rampant.
The problem with that argument, as the Fifth Circuit made plain, is that it essentially gives Congress unlimited power. If the government can ban any activity whatsoever simply because it might make tax collection harder, there's no practical ceiling on what Washington can prohibit.
The Fifth Circuit Draws a Line
The Buckeye Institute, a Columbus, Ohio-based legal organization, has been the driving force behind dual challenges to the federal home distilling ban. In McNutt v. U.S. Department of Justice, the case was brought on behalf of Scott McNutt, Rick Morris, Thomas O. Cowdrey III, John Prince III, and the Hobby Distillers Association — a group of aspiring home distillers who wanted nothing more than to pursue a craft that millions of Americans have long admired from a legal distance.
The Fifth Circuit delivered a unanimous opinion rejecting the government's tax-based justification for the ban. Judge Edith Jones wrote for the panel that "preventing activity lest it give rise to tax evasion places no limit whatsoever on Congress's power under the taxation clause." She contrasted the home distilling ban with the rest of the federal framework governing spirits, noting that "all of the other statutory provisions governing the manufacture, bottling, and labelling of distilled spirits exist to facilitate collection of taxes associated with the activity." The ban, in other words, goes well beyond what the tax power can support.
That ruling drew praise from legal observers and enthusiasm from the home distilling community. But it came with a significant asterisk.
The Commerce Clause Question Nobody Talked About — Until Now
When the district court originally ruled against the home distilling ban, the judge didn't just find the tax argument insufficient. The district court also found that the ban couldn't be saved by the Commerce Clause — the constitutional provision granting Congress the power to regulate commerce "among the several States."
The Commerce Clause has been one of the most expansive tools in the federal government's legal arsenal for nearly a century. The controlling precedent is Wickard v. Filburn, a 1942 Supreme Court case in which the Court ruled that a farmer growing wheat to feed his own livestock — wheat that never left his property — could still be regulated by Congress because his activity had a tangential effect on interstate wheat prices. That logic, stretched across decades, has been used to justify a sweeping range of federal regulations.
The district court in McNutt found that unlike the wheat price support scheme in Wickard, the home distilling ban isn't part of a comprehensive federal effort to regulate the supply and demand of liquor. That distinction mattered. But the Fifth Circuit never addressed it — because the Justice Department chose not to raise the Commerce Clause argument on appeal at all. As Judge Jones noted in a footnote, the government forfeited the argument, and the court had no obligation to reach it.
The Wall Street Journal's editorial board flagged this as the central unresolved issue, noting that "the informed speculation is that the Justice Department wanted to avoid giving the Fifth Circuit — and then the Supreme Court — an opening to reconsider the limits of the Commerce Clause."
That strategy may have worked in the Fifth Circuit. It didn't close the door in the Sixth.
The Sixth Circuit Goes the Other Way
Ream v. U.S. Department of the Treasury tells a different story — and it reached a different result.
The plaintiff, John Ream, is not a commercial operator. His filing described the situation plainly: "John Ream is seeking to engage in a hobby that is as American as apple pie, and certainly a lot older: home distilling." He wants to make "small quantities" of whiskey "solely for his and his wife's personal consumption."
The Buckeye Institute represents Ream in this case, with Robert Alt — the organization's President and Chief Executive Officer — serving as one of his attorneys, and Andrew M. Grossman, a Senior Legal Fellow at Buckeye and a partner at BakerHostetler, presenting oral argument before the Sixth Circuit.
The district court initially dismissed Ream's case on standing grounds, ruling he didn't have the right to bring the lawsuit without addressing whether the law itself was constitutional. But the Sixth Circuit's appeals panel asked for briefing on the merits — a signal that the court was willing to engage with the underlying constitutional questions.
It did engage. And it came down on the opposite side from the Fifth Circuit.
The Sixth Circuit upheld the federal ban on home distilling, finding it constitutional under Congress's taxing power and the Necessary and Proper Clause. That put the two circuits in direct conflict — one ruling the ban cannot stand, the other ruling it can. A cleaner circuit split is hard to imagine.
A Showdown at the Supreme Court
The response from the Buckeye Institute was immediate and unambiguous.
Robert Alt issued a statement saying, "John Ream will seek Supreme Court review of this decision, and looks forward to being vindicated."
Andrew Grossman was equally direct: "This decision upholding the federal ban on home distilling creates a circuit split, and we anticipate the U.S. Supreme Court resolving the conflict between the U.S. Courts of Appeals for the Fifth and Sixth Circuits."
That's the natural next step. When two federal appellate courts interpret the same law in contradictory ways, the legal system doesn't allow the contradiction to stand indefinitely. The Supreme Court's core function is to ensure uniform interpretation of federal law across the country. A circuit split of this kind — especially on a constitutional question involving the limits of congressional power — is precisely the kind of dispute the Court typically agrees to hear.
Whether the Court grants certiorari is never guaranteed. But the conditions are as favorable for Supreme Court review as they could possibly be. Two circuits. Eleven days apart. Opposite outcomes. Active advocacy from a well-resourced legal organization with experienced attorneys. And a constitutional question — the scope of the taxing power, the reach of the Necessary and Proper Clause, and potentially the Commerce Clause — with implications far beyond whiskey.
Why This Case Is About More Than Whiskey
There is a broader principle at stake here that extends well beyond what any individual American wants to make in his garage.
The Founding Fathers built a system of enumerated powers — a federal government that could only do what the Constitution specifically authorized. Over the course of the twentieth century, particularly through the expansion of Commerce Clause jurisprudence in the New Deal era, that framework was stretched in ways that gave Washington broad authority over activities with only the most indirect connection to interstate commerce.
The McNutt and Ream cases sit squarely within that larger story. A hobbyist making a few gallons of whiskey for personal consumption has no obvious connection to interstate commerce. He's not selling it. He's not distributing it. The product never leaves his home. Under any plain reading of the constitutional text, it's difficult to see how that activity falls within Congress's power to regulate commerce among the states.
The Wall Street Journal's editorial board put it plainly: the Fifth Circuit ruling was "a victory for the Constitution," but the Sixth Circuit has the opportunity to "do one better by setting up the Commerce Clause for another review by the Justices." That Commerce Clause question remains very much alive — and the Supreme Court, if it takes the case, will have the opportunity to address it.
The Court has shown some appetite in recent years for examining where the outer limits of federal power actually lie. Its 2012 ruling in NFIB v. Sebelius — the Affordable Care Act case — made clear that the Commerce Clause is not without limits. Multiple justices have signaled over the years that Wickard-era reasoning deserves a fresh look. Home distilling, as a test case, has a lot going for it: the activity is non-commercial, the product is personal, and the connection to interstate commerce is effectively nonexistent.
What It Means for the Home Distilling Community
For the thousands of Americans who have long wanted to legally make a small batch of bourbon, rye, or whiskey for personal enjoyment — the way home brewers have been legally making beer and home winemakers have been making wine for years — these cases represent the most significant legal development in generations.
Home brewing has been federally legal since 1978. Home winemaking has been permitted even longer. Yet home distilling has remained prohibited under that 1868 law, creating a distinction that strikes many as arbitrary and increasingly hard to justify on any principled grounds. The Hobby Distillers Association, which joined the McNutt case as a plaintiff, has argued for years that the prohibition is an anachronism — a relic of post-Civil War tax policy that belongs to a different era.
The Fifth Circuit agreed, at least on the tax power question. The Sixth Circuit disagreed. And now the Supreme Court will likely have to decide who was right.
Where Things Stand
Two cases. Two courts. Two opposite rulings issued eleven days apart. One plaintiff — John Ream — who wants nothing more than to make a small batch of whiskey for himself and his wife. And one legal organization that has been methodically building toward this moment.
The Buckeye Institute has pursued both cases simultaneously, representing a collection of plaintiffs ranging from individual hobbyists to an organized association of home distillers, with a legal team that includes both in-house attorneys and partners from one of the country's largest law firms. The strategy of running parallel cases in different circuits was, as it turns out, precisely what created the conditions for a Supreme Court showdown.
The circuit split is real. The stakes are significant. And for the first time in 158 years, the federal ban on home distilling faces a genuine possibility of being struck down by the nation's highest court.
John Ream will seek that review. The Buckeye Institute will argue his case. And somewhere in the not-too-distant future, nine justices may have to answer a question that has been sitting on the books, largely unexamined, since Ulysses S. Grant was in the White House: does the federal government actually have the constitutional authority to stop an American from making whiskey in his own home?
The answer, it turns out, is far less obvious than Washington has assumed for a very long time.
