Rekindle the Spirit of Independence by Legalizing Home Distilling

In 1791, a proud and hearty band of rabble-rousers in western Pennsylvania protested the first tax ever to be levied on a domestic product by America’s new federal government—a tax on the sale of whiskey. Today, the Whiskey Rebellion is primarily remembered as one of the country’s first populist uprisings—and one that presaged many future clashes between the American heartland and government elites.

However, debates over whether Alexander Hamilton’s whiskey tax was a prudent revenue-raising scheme or an egregious instance of governmental overreach often overlook what was not in dispute during the rebellion. Namely, that Americans have a right to make their own liquor.

Just three years after George Washington was seeking to aggressively enforce his treasury secretary’s tax, America’s first president opened a distillery on his Mount Vernon estate. Washington would go on to operate one of the largest distilleries in America in his retirement years—and he was far from alone when it came to liquor-making Founding Fathers. Peers such as James Madison and Patrick Henry also operated distilleries on their Virginia plantations.

Home distilling was hardly contained to the slave-holding ruling class. As the Whiskey Rebellion itself showed, homemade liquor was most common on small backwoods farms in the western Appalachian regions of the country. It was nearly impossible for these farmers to get their harvested crops to large urban buying markets before they spoiled. But if they distilled those crops into a high-proof spirit, it not only lasted much longer but also vastly reduced the volume and weight of the goods being transported.

And so, America’s tradition of home-distilled whiskey took off in earnest in the late 18th century (although the roots of homemade whiskey on American soil dates as far back as 1620 to the Berkeley Plantation on the James River). But what early citizens saw as a central part of their American birthright is now illegal in modern America.

Under federal law, home distilling is a felony violation punishable by up to five years in jail. While America’s hardline stance on home distilling has long raised eyebrows among policy wonks and industry stakeholders—especially in light of home brewing being legalized in the late 1970s—it now has attracted the attention of the libertarian legal community. The implications go well beyond homemade hooch.

Earlier this year, the Buckeye Institute—in conjunction with the elite litigation team at BakerHostetler in Washington, D.C.—launched a lawsuit challenging America’s home distilling ban, arguing that it violated the commerce clause of the United States Constitution.

The modern elastic interpretation of the commerce clause has been a thorn in the side of originalist legal scholars for decades. The advent of the commerce clause’s inexorable expansion can be found in the 1942 case of Wickard v. Filburn, in which the Supreme Court ruled that wheat grown by a farmer for home consumption was still subject to federal government regulation under the commerce clause by virtue of it having an indirect effect on the greater national wheat market (under the convoluted theory that every homegrown bushel of wheat a farmer consumed was one less bushel he might buy on the open market).

In 2008, the commerce clause was stretched even further in Gonzales v. Raich when the Court upheld the federal government’s power under the Controlled Substances Act to regulate the local cultivation and use of marijuana. The commerce clause’s ever-expanding scope has allowed the federal government to subsume more and more of American life within its regulatory orbit. Since the Raich decision, libertarian and conservative legal scholars have been looking for a way to claw back the seemingly limitless contours of the commerce clause’s reach.

Enter the federal prohibition on home distilling. The Buckeye Institute’s client, John Ream, owns Trek Brewing in Newark, Ohio, and is equal parts entrepreneur and engineer. “About 15 years ago, [my] wife gave me a homebrew kit and I just fell in love with that,” Ream told Reason. “I was an engineer by trade, so testing different things, trying different things, how different flavors come together, that really interested me.”

Formerly an aerospace engineer, Ream opened Trek in 2018. While he now brews as an occupation, he would like to be able to distill as a hobby. “The natural step from [home brewing] is looking at distilling, since the start of the [brewing and distilling] processes are the same, but then you run into a roadblock when you learn that it’s illegal,” said Ream.

Unlike in Raich, where marijuana was a Schedule I substance under the Controlled Substances Act, the federal government does not have a comprehensive regulatory scheme in place for alcohol—which has largely been regulated at the state and local level since the repeal of Prohibition. As the Buckeye Institute argues in its legal briefs, if the federal government can ban home distilling, there will be no legal limiting principle to the commerce clause at all. The federal government could even be free to ban home gardening, home baking, or home-based employment.

While a commerce clause challenge will sidestep debates over the policy merits of home distilling, the rationale behind prohibiting home distillation is as shaky as the legal arguments.