Cleveland.com first published this article.

CLEVELAND, Ohio -- John Ream can legally make beer at home. He can make wine, too. But if the Newark, Ohio, hobby brewer uses similar skills to produce whiskey for himself and his wife, he could be committing a federal crime.

“After being able to create my own beer, the next step would be to take the skills I’ve learned to make my own spirits,” Ream recently told cleveland.com. Instead, he ran into a ban backed by penalties of up to five years in prison and a $10,000 fine or both.

Now the U.S. Supreme Court is preparing to decide whether that Reconstruction-era law is constitutional. The justices agreed Oct. 19 to hear Department of Justice v. McNutt, a Texas case in which the 5th U.S. Circuit Court of Appeals found that Congress exceeded its taxing power by banning distilling in the home.

The ruling conflicts with an April decision from the 6th Circuit in Cincinnati, which upheld the same ban in Ream’s case. The Supreme Court is expected to hear arguments in early 2027 and issue a decision by late June or early July.

The dispute is about more than who may keep a still in a garage or basement. It reaches back to the first years of the republic, when whiskey was money on the frontier and a tax on it became a test of whether the new federal government could make its laws stick.

In 1791, at Treasury Secretary Alexander Hamilton’s urging, Congress imposed the nation’s first internal federal excise tax on distilled spirits. The money was intended to help pay debts from the Revolutionary War that the federal government had assumed from the states.

For farmers west of the Appalachian Mountains, distilling was not merely a pastime. Grain was bulky, perishable and expensive to haul over poor roads. Turned into whiskey, it became compact, durable and valuable. In a cash-poor barter economy, it also served as a medium of exchange.

The frontier’s ‘first cryptocurrency’

Brady Crytzer, a historian and author of “The Whiskey Rebellion: A Distilled History of an American Crisis,” loosely described whiskey as the frontier’s “first cryptocurrency.” The tax had to be paid in cash, however, and its structure was harder on small producers than on large commercial distillers.

Resistance escalated in western Pennsylvania. Tax collectors were threatened and attacked, and in 1794 armed opponents gathered near Pittsburgh. President George Washington called out nearly 13,000 militia members to put down the resistance, but the “Whiskey Rebellion” established that the federal government was prepared to enforce its revenue laws.

“The Western Insurrection was a real test for our country,” Crytzer said. The fight, he said, was about whiskey because whiskey drove the western economy — but it was also about federal power, regional identity and who would bear the cost of building a nation.

The original whiskey tax was repealed in 1802. Federal restrictions on distilling later receded, but after the Civil War the government’s needed more money. Congress imposed a new liquor excise tax in 1862 as part of a broader internal-revenue system, and the tax remained after the war.

Whiskey was an attractive source of revenue because Americans produced and consumed so much of it, said Kevin Kosar, author of “Whiskey: A Global History” and “Moonshine: A Global History.” Before a permanent federal income tax, the government relied heavily on customs duties and excise taxes.

“Even a small tax on each gallon of liquor promised to bring in lots of revenue, assuming the law was obeyed and the money collected,” Kosar said.

Collection was the problem. Fraud and evasion were widespread in the postwar liquor trade. In 1868, Congress overhauled the system, requiring distillers to register, pay taxes, accept inspections and follow rules for production and storage. It also prohibited a distilled-spirits plant in a “dwelling-house” or in a shed, yard or enclosure connected to one.

That 158-year-old restriction is the foundation of today’s home-distilling ban. It was designed to protect tax revenue by keeping production in places that could be registered, measured and inspected.

Beginning in 1920, the 18th Amendment and the Volstead Act banned the manufacture, sale and transportation of most intoxicating liquor. Prohibition ended in 1933, but the older rule against distilling spirits in the home survived.

Federal law now allows qualifying adults to make beer and wine at home for personal or family use without paying federal excise tax. In fact, Congress created the home-brewing exemption in 1978. There is no comparable general exemption for spirits.

A taxing endeavor

The Alcohol and Tobacco Tax and Trade Bureau (TTB) requires beverage spirits to be produced at a qualified distilled-spirits plant, with federal approval, records and tax compliance. Such plants cannot operate in residences. Paying the tax alone does not make a basement still legal.

To the federal government, those location rules are practical tax enforcement. A registered plant allows inspectors to track equipment and production and determine what tax is owed. Private, unregistered stills are easier to conceal.

The challengers say using that logic Congress could have nearly limitless power to criminalize private conduct merely because it might hide taxable activity.

The 5th Circuit agreed, reasoning that a ban that prevents taxable spirits from being produced does not itself raise revenue. The 6th Circuit found the restriction a permissible means of carrying out Congress’ power to tax.

“If something is for your own personal use, it doesn’t feel right that I can’t do that in my own home,” Ream said.

Attorney Robert Alt, president and CEO of The Buckeye Institute, which represents Ream, argues that the case is about the limits of federal power over noncommercial activity inside a home. He also sees a parallel with home brewing, which helped hobbyists develop skills and recipes before some became entrepreneurs.

“American innovation is built on people tinkering in garages, people tinkering in their kitchens,” Alt said. “Here, in regard to whiskey, we are throttling innovation in the cradle. There’s something really un-American about this law.”

Entrepreneurial spirits

Commercial distillers interviewed for this story did not view hobbyists as competition. Gene Sigel, founder and owner of Red Eagle Distillery in Geneva, said he is open in principle to home distilling as a matter of personal liberty. He suspects the practice could follow the path of home beer and wine making: a burst of attention followed by a smaller core of dedicated hobbyists.

Distillers stress that the process is not the same as brewing beer. Distillation concentrates alcohol by heating fermented liquid and collecting vapor. Part of the by-product -- ethanol vapor -- is highly flammable, and poorly designed or operated equipment can create fire, pressure and contamination hazards.

Ryan Lang, CEO of Middle West Spirits in Columbus, said he does not feel threatened by the prospect of home distilling and believes it may be possible to legalize it with safeguards. His concern is what happens without training, suitable equipment and the protections required at licensed facilities.

“You’re making volatiles that are vaporized,” Lang said. “If you don’t know how to manage that, you can get yourself in trouble really quick.”

In fact, that happened Oct. 26 when an explosion at a home in the North Carolina mountains exposed an illegal moonshine operation.

The Supreme Court’s decision will not settle every safety or state-law question surrounding home distilling. It will answer the narrower constitutional issue: whether Congress may use its taxing authority, together with its power to pass laws necessary and proper to carry it out, to keep a still out of a private home.

More than two centuries after the first whiskey tax tested the reach of the young federal government, distilled spirits are again at the center of a fight over revenue, enforcement and personal freedom. This time, nine justices will decide where that power ends.