Thomas A. Berry and Matthew Cavedon
John Ream wants to distill spirits at home to enjoy with his wife. He would gladly register a still and pay the relevant federal tax. But an 1868 federal law prohibits home distilling, even if only for home consumption. Operating a still in your home—or on a parcel “connected with” it—is a federal felony. Ream sued the government, alleging that this ban violates the Constitution because home distilling for home consumption can only be regulated by the states, not the federal government.
But the Sixth Circuit upheld the ban as a necessary and proper means of enforcing the federal tax on distilled spirits, thereby breaking with a Fifth Circuit decision issued just 11 days earlier. The Sixth Circuit reasoned that it would be difficult to collect the federal tax for spirits that Ream produces; therefore, the federal government may simply ban Ream from producing the spirits in the first place. Cato filed an amicus brief urging the Supreme Court to take Ream’s case and reverse the decision below. And today, the Supreme Court will meet to decide whether to take the case.
In our brief, we lay out the long tradition of home distilling. Americans distilled spirits on their homesteads well before independence. Colonial Americans enjoyed drinking rum and grain whiskey; by 1770, New England alone had over 150 distilleries. Prominent Founders, including George Washington, hosted successful distilleries on their homesteads. Yet today, the federal government bans home distilling outright.
As our brief explains, this ban exceeds Congress’ constitutional powers. In James Madison’s words, “The powers delegated by the … Constitution to the federal government are few and defined.” Congress possesses only those powers enumerated in the Constitution. Yet over time, the courts have given the federal government a sweeping license to regulate nearly all human activity—and even inactivity. The result is a national police power untethered from the Constitution’s original understanding and incompatible with the liberty-preserving structure it established.
The original public meaning of the Constitution is that Congress may regulate the trade and transportation of goods and persons across state lines. The Constitution did not convey authority to control or prohibit purely intrastate activity such as home distilling. But in the New Deal–era case Wickard v. Filburn, the Supreme Court held that the commerce clause authorizes Congress to regulate even a farmer’s growing and consuming of wheat entirely on his own farm. The Court reasoned that Congress may regulate local activities if, in the aggregate, they exert a substantial economic effect on interstate commerce.
And Wickard was not the last decision to apply this flawed reasoning. In the 2005 decision Gonzales v. Raich, the Court extended Wickard’s reasoning further, upholding the federal prohibition on the private, intrastate cultivation and use of medical marijuana. The majority first concluded that the plaintiffs’ marijuana activities were “economic.” It further held that courts need not determine whether regulated activities actually substantially affect interstate commerce in the aggregate but only whether Congress had a “rational basis” for concluding that they do. Raich is the apex of congressional authority to regulate intrastate activity.
It is time to restore the Constitution’s first principle of limited national power and overturn Raich. John Ream’s case presents an ideal vehicle. By extending federal criminal law to purely in-home, noncommercial activity, the decision below collapses the distinction between national and state authority and erases structural limits that preserve federalism.
The Constitution does not require another century of overreach—it demands fidelity to its text and original design. The Supreme Court should grant the petition for review, overrule Raich, and reaffirm that federal powers are both enumerated and limited.
