The Supreme Court is preparing to revisit a federal law that’s been around since 1868, back when Ulysses S. Grant was running for president and homemade whiskey was considerably more common than indoor plumbing. The law prohibits Americans from distilling spirits in their homes, even for personal consumption. Now, nearly 160 years later, the justices will decide whether Congress had the constitutional authority to impose that restriction in the first place.

It’s an unusual case involving whiskey, taxation, personal liberty, and the limits of federal authority. And while the subject might sound like something out of a moonshiner’s autobiography, the constitutional implications extend well beyond what’s bubbling in somebody’s backyard still.

When Taxation Becomes Prohibition

A Taxing Power Trip

The central argument against the prohibition begins with a straightforward constitutional distinction: Congress has the authority to levy and collect taxes, but that doesn’t necessarily mean it can criminalize an activity simply because regulating it might make tax collection easier.

Article I, Section 8 of the Constitution grants Congress the power to impose taxes, duties, and excises. However, opponents argue that this authority isn’t a blank check to prohibit otherwise lawful activities. Consider the distinction between taxing homemade whiskey and making it illegal to produce homemade whiskey. The former directly exercises Congress’s revenue-raising authority. The latter prevents the taxable activity from occurring at all.

In April 2026, the Fifth Circuit Court of Appeals embraced this reasoning, concluding that the federal restriction exceeded Congress’s constitutional taxing power. The court reasoned that rather than collecting revenue, the prohibition prevents people from producing something that could generate revenue. In other words, the government isn’t merely demanding its share of the whiskey. It’s preventing the whiskey from existing. For opponents, that’s a fundamentally different exercise of governmental authority.

Home Is Where the Federalism Is

Another argument concerns the division of authority between Washington and the states. The Constitution establishes a federal government possessing specifically enumerated powers, while the Tenth Amendment reserves other powers to the states or the people. Traditionally, states possess broad authority to regulate activities affecting public health, safety, and welfare. That includes considerable authority over alcohol production and distribution. Opponents argue that producing a small quantity of spirits at home for personal consumption falls primarily within this sphere of state regulatory authority, particularly when the activity involves no commercial transaction.

The federal government unquestionably possesses constitutional powers affecting alcohol production, but those powers must have identifiable limits. If Washington can prohibit a private activity merely because allowing it might complicate federal taxation, critics contend that the distinction between national and state authority becomes increasingly difficult to maintain.

The constitutional question, therefore, isn’t whether someone should be allowed to produce homemade bourbon. It’s whether the federal government possesses the authority to prevent them from doing so under the particular constitutional power it invokes.

Beer, Wine, and the Curious Case of Whiskey

Federal law already permits adults to produce limited quantities of beer and wine at home for personal or family consumption, subject to applicable requirements. Distilled spirits, however, receive very different treatment. Someone can legally brew homemade beer or produce wine within federal limits, but distilling a comparable quantity of whiskey at home remains a federal crime.

The distinction reflects differences in the government’s historical approach to alcohol taxation, production, and enforcement. Opponents acknowledge those differences but question whether they justify an outright prohibition. If the government can establish reasonable exemptions and regulatory arrangements for homemade beer and wine, they argue, it might also establish a system for small-scale, noncommercial distillation. Possible alternatives could include registration requirements, production limits, reporting obligations, and appropriate tax payments.

This argument doesn’t establish that Congress must treat every alcoholic beverage identically. Rather, it raises the question of whether less restrictive approaches could adequately serve the government’s legitimate objectives.

The Necessary and Proper Escape Hatch

The dispute also centers on the Constitution’s Necessary and Proper Clause, which allows Congress to enact legislation needed to carry out its enumerated powers. Opponents argue that the clause can’t transform a limited taxing authority into an unrestricted power to prohibit private conduct. The Fifth Circuit concluded that the home-distilling prohibition wasn’t sufficiently connected to collecting federal taxes and improperly intruded upon powers reserved to the states.

Critics also raise concerns about the implications of the government’s reasoning. Suppose Congress imposed a federal excise tax on another commonly produced household product. Could it then prohibit people from making that product at home because inspecting private residences would be inconvenient? Could similar reasoning eventually justify restrictions on home businesses or other private activities?

These are hypothetical examples, not inevitable consequences of upholding the law. Nevertheless, opponents believe they illustrate why constitutional boundaries must remain meaningful even when a particular regulation serves a legitimate governmental purpose.

The Taxman Has Receipts

The Whiskey Rebellion Wasn’t About Tea

Supporters of the prohibition begin with an important historical point: federal taxation of distilled spirits dates almost to the nation’s founding. Alexander Hamilton championed an excise tax on whiskey in 1791 to help address federal debts. The resulting controversy contributed to the Whiskey Rebellion, demonstrating how contentious alcohol taxation could become.

By the Reconstruction era, widespread tax evasion among distillers had become a significant problem. Congress responded in 1868 with legislation designed to strengthen enforcement and protect federal revenue. The home-distilling restriction emerged from that effort.

Defenders therefore argue that the prohibition wasn’t an arbitrary attempt to dictate what Americans could do in their kitchens. It was part of a broader system established to address an extensive, documented history of tax evasion. That historical background matters because courts evaluating the Necessary and Proper Clause frequently consider whether legislation reasonably advances a legitimate constitutional objective.

The Still You Can’t See Is the Still You Can’t Tax

The government’s practical argument is that home distilling creates substantial enforcement difficulties. Commercial distilleries operate under registration, inspection, reporting, and recordkeeping requirements designed to ensure that applicable taxes are collected. Private residences present a different situation.

Government inspectors can’t enter homes as freely as they can inspect appropriately regulated commercial premises. Distilling operations may be concealed, production quantities may be difficult to verify, and untaxed spirits could potentially enter commercial markets. The government argues that restricting distilling to approved locations makes the federal excise-tax system more effective.

The Sixth Circuit Court of Appeals accepted this reasoning in April 2026, finding that the location restriction was reasonably connected to protecting federal revenue. Supporters also contend that allowing home distilling could encourage some consumers to substitute untaxed homemade spirits for commercially produced, taxed products. Under this reasoning, an outright location restriction may protect more federal revenue than a system permitting home production under rules that are difficult to enforce.

Necessary Doesn’t Mean Absolutely Essential

The government’s constitutional defense relies heavily on the Necessary and Proper Clause. Under longstanding Supreme Court precedent, particularly McCulloch v. Maryland (1819), Congress generally possesses considerable discretion to select reasonable means of carrying out its constitutionally authorized responsibilities. A law doesn’t necessarily have to be the only conceivable way to accomplish a legitimate objective. It must, however, bear an appropriate relationship to that objective and remain consistent with constitutional limitations.

The Sixth Circuit reasoned that prohibiting home distilling satisfied this standard because Congress had historical evidence that restrictions on distillery locations would help combat tax evasion. The court also emphasized that judges should exercise caution before substituting their own judgments about enforcement effectiveness for those of Congress.

From this perspective, the Constitution doesn’t require lawmakers to adopt the least restrictive conceivable tax-enforcement measure. If restricting distillery locations reasonably protects federal revenue, supporters argue that the law falls within Congress’s discretion.

Before We Start Outlawing Grandma’s Cookies

Defenders reject the suggestion that upholding the prohibition would necessarily authorize Congress to regulate virtually everything Americans do inside their homes. They argue that distilled spirits occupy a distinctive historical and regulatory category.

The federal government has taxed alcohol for generations, and problems involving illicit production and tax evasion are extensively documented. A hypothetical federal ban on baking bread, sewing clothing, or growing vegetables would involve different circumstances and require its own constitutional justification. The Sixth Circuit expressly distinguished such speculative examples from the documented problems surrounding alcohol taxation.

Supporters therefore contend that the home-distilling restriction can be upheld without establishing unlimited federal authority over ordinary household activities. Furthermore, they argue that Congress isn’t exercising a general police power simply because its tax-enforcement measures incidentally restrict private behavior. Instead, it’s regulating the location of an activity directly connected to a longstanding federal tax.

This Argument Doesn’t Hold Its Liquor

After considering both sides, I believe the federal prohibition on home distilling is unconstitutional. Not because producing homemade whiskey is some sacred constitutional right, and certainly not because I think every American needs a copper still next to the backyard barbecue. The issue is much more fundamental: The federal government’s authority to collect taxes shouldn’t become an unlimited authority to prohibit private activities that might otherwise generate taxable revenue.

To be fair, the government’s argument isn’t without merit. The historical evidence of tax evasion is substantial, and Congress unquestionably possesses the authority to establish reasonable measures for collecting legitimate federal taxes. The Sixth Circuit made a serious constitutional argument grounded in precedent and practical enforcement concerns. Dismissing that reasoning outright would be a mistake.

That said, the Fifth Circuit’s position is ultimately more persuasive. The disputed law doesn’t merely require registration, establish production standards, or impose penalties for failing to pay taxes. It categorically prohibits distilling spirits in a home and its connected areas, regardless of whether the individual intends to sell anything, evade taxes, or violate another law. That’s a considerable expansion of governmental control over private conduct. And while the Necessary and Proper Clause gives Congress flexibility, that flexibility must remain connected to the powers actually granted by the Constitution.

Liberty, Responsibility, and a Little Common Sense

Scripture recognizes the legitimate authority of civil government, including its responsibility to maintain order and collect lawful taxes. Romans 13:6–7 expressly addresses the obligation to pay tribute and custom where they’re due. But recognizing legitimate government authority doesn’t mean treating every exercise of that authority as necessarily justified. Government exists to uphold justice and protect society, not to assume unlimited supervision over otherwise peaceful private conduct.

Scripture also condemns drunkenness and calls believers to exercise self-control. Those principles remain important whether alcohol comes from a commercial distillery or a homemade still. Personal liberty doesn’t eliminate personal responsibility.

There are legitimate safety concerns associated with distillation, including fire hazards, contamination, and improperly manufactured products. States and local governments can address those concerns through constitutionally appropriate regulations. The federal government can likewise enforce valid taxes, regulate commercial operations within its constitutional authority, and punish fraud.

None of that requires concluding that a person peacefully producing a small quantity of spirits for personal use should face a potential five-year federal prison sentence simply because the equipment happens to be located at home. And yes, five years. Apparently, the federal government’s response to someone making homemade whiskey can be more dramatic than the whiskey itself.

A Better Recipe for Constitutional Government

The Supreme Court should strike down the challenged federal location prohibition while preserving Congress’s legitimate authority to tax distilled spirits and enforce appropriate revenue laws. Such a ruling wouldn’t automatically legalize home distilling nationwide. Other federal requirements and applicable state laws would still need to be addressed.

Nor would it prevent lawmakers from developing a reasonable regulatory framework that respects constitutional limits while addressing legitimate concerns about taxation, safety, and commercial activity. The Constitution doesn’t promise Americans complete freedom from government regulation. It establishes boundaries within which government must operate. Those boundaries shouldn’t disappear whenever enforcing a law becomes inconvenient.

So, I believe the federal home-distilling ban is unconstitutional because it extends Congress’s taxing authority beyond its proper limits. Protecting government revenue is a legitimate objective, but criminalizing otherwise peaceful private conduct simply to make taxation easier goes too far.