Staff Reports
A small, old law and a big question about liberty are headed to the U.S. Supreme Court. The Buckeye Institute filed a petition asking the Court to settle a split between two federal appeals courts over whether a Reconstruction‑era federal ban on home whiskey distilleries can stand. This is more than a quarrel about moonshine; it is a straight fight over the limits of Congress’s power, the reach of federal tax law, and whether Americans may tinker in their own garages without the feds breathing down their necks.
What just happened: cert petition seeks Supreme Court review
On July 20, 2026, the Buckeye Institute formally asked the Supreme Court to take up the case after the Fifth and Sixth Circuits issued opposite rulings. The petition points to the exact problem the Supreme Court exists to fix: materially identical questions decided two different ways. Buckeye represents plaintiffs who want to be able to distill for personal use without fear of federal criminal penalties, and its leaders say the split makes review necessary so citizens aren’t treated like second‑class consumers depending on their zip code.
Why the appeals courts disagreed
The Fifth Circuit in McNutt found the federal ban unconstitutional, calling the statutes an “anti‑revenue” law that couldn’t be justified as a proper exercise of Congress’s taxing power. Eleven days later the Sixth Circuit in Ream reached the opposite conclusion, upholding the ban as a valid tool to enforce federal excise taxes under the Necessary and Proper framework. That kind of clash — same statutes, same constitutional claims, different outcomes — is textbook certiorari material. The statutes in question trace back to the post‑Civil War tax code and remain criminal offenses under 26 U.S.C., but courts now disagree on whether those criminal rules exceed federal authority.
What’s at stake: liberty, federal power, and practical results
If the Supreme Court takes the case and rules for the Buckeye side, hobby distillers in every circuit could point to the decision and argue federal criminal enforcement is over. If the Court sides with the government, the Reconstruction‑era ban lives on nationwide and reinforces a broad view of congressional power to police private conduct in the name of tax enforcement. This isn’t just about a hobbyist distilling a bottle for a family holiday. It’s about whether Congress can criminalize commonplace home activity because it thinks enforcement will be harder otherwise. Spoiler: people have been making wine and beer at home for years without turning the country into a lawless speakeasy.
Bottom line
The Buckeye Institute’s petition makes a clean ask: resolve the circuit split and answer whether the federal government can keep a 150‑plus year prohibition on home distilling. The Supreme Court hasn’t said whether it will grant review, but the legal stakes are high — constitutional limits, personal liberty, and a tidy little industry of hobby distillers all hang in the balance. Whatever your view on drinking, this case is worth watching: it could be a win for home freedoms or a reminder that old statutes still have surprising power over our private lives.
