Ream v. US Department of the Treasury Brief: Restore the Original Meaning of the Commerce Clause

Matthew Cavedon

A former aerospace engineer and current homebrewer, Ohioan 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. 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.

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. Cato filed an amicus brief urging the Supreme Court to review Ream’s case and reverse the decision.

Americans distilled spirits on their homesteads well before independence. Colonial Americans enjoyed drinking rum and grain whiskey, and by 1770, New England alone had over 150 distilleries. Prominent Founders, including George Washington, operated successful distilleries on their homesteads. Yet today, the federal government has banned home distilling outright.

Ream is right that this ban exceeds Congress’s 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, judicial expansion of the commerce clause and the necessary and proper clause has transformed a limited power to regulate interstate trade into 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 commerce clause was that Congress could regulate the trade and transportation of goods and people across state lines. It did not convey authority to control or prohibit purely intrastate activity such as home distilling.

Unfortunately, the Supreme Court has strayed from that original understanding. In the New Deal–era case Wickard v. Filburn, the Court held that the commerce clause authorizes Congress to regulate even a farmer’s growing and consuming 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.

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 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. This 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 Court should grant the petition for a writ of certiorari, overrule Raich, and reaffirm that federal powers are both enumerated and limited.