Amicus Curiae Brief — John Ream, Petitioner v. Department of the Treasury, et al.

NO. 26-93

In the

Supreme Court of the United States

JOHN REAM,

Petitioner,

v.

UNITED STATES DEPARTMENT OF TREASURY, ET AL.,

Respondents.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF OF AMICUS CURIAE

COMPETITIVE ENTERPRISE INSTITUTE

IN SUPPORT OF PETITIONER

Ondray T. Harris

Counsel of Record

Soriya R. Chhe

Marin Murdock

COMPETITIVE ENTERPRISE INSTITUTE

1310 L Street NW, 7th Floor

Washington, DC 20005

(202) 331-2265

ondray.harris@cei.org

August 20, 2026

SUPREME COURT PRESS

Counsel for Amicus Curiae

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF THE AMICI CURIAE ....................... 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT ............................................................... 3

I.

The History of Home Distilling in

America Undermines the Sixth Circuit’s

Determination That Banning It Is a

Necessary and Proper Exercise of Congress’s

Taxing Power.................................................... 3

CONCLUSION.......................................................... 16

ii

TABLE OF AUTHORITIES

CASES

TABLE OF AUTHORITIES

Page

McCulloch v. Maryland,

17 U.S. 316 (1819). .............................................. 17

McNutt v. DOJ, No. 24-10760 (5th Cir. Apr.

10, 2026). ....................................................... 2, 16

Ream v. U.S. Dep’t of the Treasury,

No. 25-3259 (6th Cir. Apr. 21, 2026). ........ 2, 16, 17

STATUTES

26 U.S.C. § 5203 .......................................................... 7

28-A M.R.S. § 1358..................................................... 16

Act of July 24, 1813, ch. 25, § 14, 3 Stat. 42 .............. 8

Act of July 24, 1813, ch. 25, § 6, 3 Stat. 42 ................ 7

Act of July 24, 1813, ch. XXV, 3 Stat. 42. .............. 7, 8

Act of Aug. 2, 1813, ch. 39, 3 Stat. 72. ....................... 7

Act of Dec. 21, 1814, ch. 15, §§ 1, 23 .......................... 8

Act of Apr. 19, 1816, ch. 58, § 1 .................................. 8

Act of Dec. 23, 1817, ch. 1, § 1 .................................... 8

Act of June 30, 1864, ch. 173, § 55 ............................. 8

Mass. Gen. Laws ch. 138, § 3 ..................................... 16

Mo. Rev. Stat. § 311.055 ............................................ 16

N.H. Rev. Stat. Ann. § 175:5-b, I................................ 16

Revenue Act of 1862, ch. 119, 12 Stat. 432 (1862) ........ 8

U.S. Statutes at Large, 1 Stat. 199 (1791) ................. 6

W. Va. Code § 60-6-10(b) ............................................ 16

iii

TABLE OF AUTHORITIES (Cont.)

OTHER AUTHORITIES

Page

Ben Semark,

Revenue over Reason: A Case for Home

Distilling, CEI BLOG (Aug. 6, 2026), https:

//cei.org/blog/revenue-over-reason-a-casefor-home-distilling/ .............................................. 7

Bruce E. Stewart,

Moonshiners and Prohibitionists: The

Battle over Alcohol in Southern

Appalachia, University Press of Kentucky

(2011) ........................................................... 12, 15

David D. Stewart & Joseph J. Thorndike,

Drunk Tax History, TAX NOTES TALK

(Apr. 1, 2018), taxnotes.com. ................................ 8

George Thorpe,

Letter from George Thorpe to John Smyth

(Dec. 19, 1620), ENCYCLOPEDIA VIRGINIA,

encyclopediavirginia.org (last visited Aug.

13, 2026 ................................................................ 3

Harrison W. Mark,

Whiskey Rebellion, WORLD HISTORY

ENCYCLOPEDIA (Aug. 13, 2024),

https://www.worldhistory.org/Whiskey_

Rebellion/ ......................................................... 5, 6

Jeremiah W. Jenks,

The Development of the Whiskey Trust,

4 Q. J. ECON. (1890) ............................................. 9

Joseph J. Thorndike,

An Army of Officials: The Civil War

Bureau of Internal Revenue,

93 TAX NOTES (2001) ................................... 12, 13

iv

TABLE OF AUTHORITIES (Cont.)

Page

Maria Rosaria Belgiorno,

Ancient Distillation and Experimental

Archaeology about the Prehistoric

Apparatuses of Tepe Gawra, EXARC J.

(2020) ................................................................... 3

Matthew C. Stephenson & Mariano-Florentino

Cuéllar, Taming Systemic Corruption:

The American Experience and Its

Implications for Contemporary Debates,

151 WORLD DEV. (2022). .............................. 14, 15

Patrick Henry,

Letter from Patrick Henry to unnamed

neighbor (July 28, 1794), RR Auction,

https://www.rrauction.com/auctions/lotdetail/31949500348241-patrick-henryhenry-writes-to-his-neighbor-concerningsupplies-of-rye-and-corn-for-his-distilleryonly-months-before-the-whiskey-rebellionin-western-pennsylvania/ [perma.cc]................... 5

Rebecca Dalzell,

The Whiskey Wars That Left Brooklyn in

Ruins, Smithsonian Mag. (Nov. 18, 2014),

https://www.smithsonianmag.com/history/

whiskey-wars-left-brooklyn-ruins180953352/. ........................................................ 13

Robert Stiffler,

Seeds of History, VIRGINIA PILOT, July 3,

1994, https://scholar.lib.vt.edu/VA-news/

VA-Pilot/issues/1994/vp940703/07010066.

htm ....................................................................... 5

v

TABLE OF AUTHORITIES (Cont.)

Page

Sarah H. Meacham,

Every Home a Distillery: Alcohol, Gender,

and Technology in the Colonial

Chesapeake, Baltimore, MD,

Johns Hopkins Press (2009)................ 2, 4, 5, 6, 7

Timothy Rives,

Grant, Babcock, and the Whiskey Ring,

PROLOGUE, Fall 2000, https://www.

archives.gov/publications/prologue/2000/

fall/whiskey-ring-1 ............................................ 14

Witnessing History Education Foundation,

Bourbon and Kentucky: A History

Distilled (2008), distillerytrail.com................. 4, 7

1

INTEREST OF THE AMICI CURIAE1

The Amicus Curiae COMPETITIVE ENTERPRISE

INSTITUTE (CEI) is a nonprofit educational and research

institute headquartered in Washington, D.C., dedicated

to promoting the principles of free markets and limited

government. Since its founding in 1984, the institute

has focused on raising public understanding of the

problems of overregulation through policy analysis,

commentary, and litigation. CEI also pursues publicinterest litigation to ensure that federal agencies act

within the constraints of the United States Constitution,

the Administrative Procedure Act, and its enabling

statutes. CEI’s mission is to develop and advocate for

policies that advance the right to freedom, fairness,

property, and prosperity for Americans.

1 Pursuant to Supreme Court Rule 37.6, no counsel for a party

authored this brief in whole or in part, and no party or counsel

for a party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

amicus curiae, its members, or its counsel made a monetary

contribution to its preparation or submission. Pursuant to

Supreme Court Rule 37.2, counsel provided timely notice to the

parties of the intent to file this brief.

2

SUMMARY OF THE ARGUMENT

Federal law prohibiting home distilling deprives

Americans of the right to pursue an activity whose

history predates the founding of America itself. Home

distilling and the consumption of spirits was an

everyday routine in early America. Sarah H. Meacham,

Every Home a Distillery: Alcohol, Gender, and

Technology in the Colonial Chesapeake 18 (2009). It

was legal before, during and after the Constitution

was drafted, passed and ratified in 1788. The activity

remained legal for 80 years, until 1868, when Congress

permanently outlawed this common practice in the

spirit of taxation.

This Court is now presented with a circuit split

on whether the ban should continue. The Fifth Circuit

reversed the ban, finding it: (1) exceeded Congress’

taxing power because it does not further the collection

of revenue and (2) unjustifiable under the Necessary

and Proper Clause because it is not “plainly adapted”

to “effectuate Congress’s taxation of spirits” and improperly “invaded the reserved police and regulatory

power of the states.” McNutt v. DOJ, No. 24-10760,

slip op. at 17, 21 (5th Cir. Apr. 10, 2026).

The Sixth Circuit affirmed the ban. Although it

agrees that the ban exceeds Congress’ taxing power

because it proscribes payment to the Federal treasury,

the court found it justifiable under the Necessary and

Proper Clause. Among other things, the court cited to

a “history of tax evasion as old as the Republic itself”

to justify the ban as necessary for the collection of

distilled spirit taxes. Ream v. U.S. Dep’t of the Treasury,

3

No. 25-3259, slip op. at 8 (6th Cir. Apr. 21, 2026). In

doing so, the court ignores the rest of the historical

record up until that point. For 80 years after America’s

founding, the government taxed liquor without ever

banning home distilling. The Court ignored Congress’

own role leading up to the ban that culminated in, if

not created, the government’s inability to effectively

collect taxes on spirits.

The history of home distilling in America leading

up to the 1868 ban undercuts the Sixth Circuit’s

narrative, demonstrating instead that Congress’s ban

on home distilling was neither a necessary nor proper

exercise of its Article I power.

ARGUMENT

I.

The History of Home Distilling in America

Undermines the Sixth Circuit’s Determination That Banning It Is a Necessary and

Proper Exercise of Congress’s Taxing Power

The art of distilling started thousands of years

ago, tracing back to ancient Mesopotamia around

3500 BC and has since been practiced in homes and

other settings across the world. Maria Rosaria Belgiorno,

Ancient Distillation and Experimental Archaeology

about the Prehistoric Apparatuses of Tepe Gawra,

EXARC J., Issue 2020/2, 2020. In America, it arrived

with the colonists. Records from colonists dating back

to the 1600’s recall the successful distillation of spirits

from corn with stills they brought over from Europe.

Letter from George Thorpe to John Smyth (Dec. 19,

4

1620), in Encyclopedia Virginia, encyclopediavirginia.

org (last visited Aug. 13, 2026).

The distillation of alcohol was a routine and vital

part of early American life. Bourbon and Kentucky: A

History Distilled at 36:35, Witnessing History Education

Foundation 2008, distillerytrail.com. Alcohol recipes

preceded those for food in cookbooks. Meacham, supra

8. Alcoholic beverages were a staple for early Americans.

Id. at 1-2. It was the only safe and accessible beverage

for colonists. Id. at 1 “Colonists drank alcoholic beverages during church services, in courtroom proceedings,

in the House of Burgesses, at quiltings, at home, at

taverns, at weddings, and at funerals.” Id. at 2. The

provision of alcoholic beverages was written into

contracts for indentured servitude along with shelter,

clothing and food. Id. at 6. By historical accounts of a

Virginia plantation from the 1600s, 150 gallons of

brandy and four hogsheads of rum alone was consumed

annually to the tune of £100 per year. Id. Alcohol was

used in medicine. Id. at 8. Babies and sick people

bathed in spirits. Id. Spirits were used as cleaning

agents. Id. Candidates handed out liquor to their

supporters at the polls. Even George Washington

spent over £37 on brandy, rum, cider, beer, and wine

to woo freeholders during his 1758 run for the House

of Burgesses. Id. at 69.

In Chesapeake, making alcohol was left to women.

Id. at 24. Women brewed beer, cider and distilled spirits.

Id. Distillation was the most effective way to preserve

fruit cider, grain and other early American crops. Id.

at 56. In the 1700s, when stills were expensive, owners

passed stills down to their children. Id. at 59. “[B]y the

late eighteenth century, the diffusion of the new

apples, presses, and stills meant that even men of small-

5

planter status could make most of their alcohol their

households required at home.” Id. at 115.

During the American Revolution, “George Washington and the Quartermaster’s Department adopted

rum and whiskey as part of the official ration.” Id. at

109. In 1781, Congress contracted with individual

men to provide army rations, which included, among

other provisions, a daily ration of one gill of rum per

man. Id. at 113.

After leaving office, in 1797, George Washington

himself started a distillery on his plantation at Mount

Vernon. Id. at 92. Thomas Jefferson owned a home still

at Monticello, where he made brandy from “Lemon

Cling” peaches he cultivated in his orchards. Robert

Stiffler, Seeds of History, VA. PILOT, July 3, 1994, at

G1, https://scholar.lib.vt.edu/VA-news/VA-Pilot/issues/

1994/vp940703/07010066.htm. Patrick Henry also

distilled at home. Letter from Patrick Henry to unnamed

neighbor (July 28, 1794), in RR Auction, https://www.

rrauction.com/auctions/lot-detail/31949500348241patrick-henry-henry-writes-to-his-neighbor-concerningsupplies-of-rye-and-corn-for-his-distillery-only-monthsbefore-the-whiskey-rebellion-in-western-pennsylvania/

[perma.cc] (last visited Aug. 14, 2026). During the early

nineteenth century, Americans began “heading westward, where corn grew more easily than other crops in

the thin, rocky soil of the newly settled areas.” Meacham,

supra 123. Given the distance, western farmers found

it difficult to bring produce like corn, rye, and grain to

market before the goods spoil. Id. and Harrison W.

Mark, Whiskey Rebellion, World History Encyclopedia

(Aug. 13, 2024), https://www.worldhistory.org/Whiskey

_Rebellion/. So, they prevented “their produce from

spoiling through distilling it as whiskey.” Meacham,

6

supra 123. This also made it easier to transport. Mark,

supra. Whiskey prices dropped as supply rose.

Meacham, supra 123. And Americans began drinking

larger amounts of corn whiskey. Id.

Distilling alcohol was so central to early America

that it caused an uprising when Alexander Hamilton

proposed a whisky tax to pay for the Revolutionary

War, which Congress passed in 1791. Mark, supra.

The farmers out west rebelled because it was seen as

an attack on their livelihood. Id. Most of the farmers

operated small stills. Id.

The Whisky Rebellion, as it was later named, was

the first major rebellion after America adopted the

U.S. Constitution. Id. Opposition grew so strong that

it had to be quelled personally by America’s sitting

president, George Washington. Id. Although the riots

ended, federal tax collectors had difficulty collecting

the tax. Id. In 1802, the year after Thomas Jefferson

became president, Congress repealed the Whiskey Act.

Id. Importantly, in the face of active resistance and

tax evasion, the founders did not respond with a ban

on home distilling to address the hardship of collecting

taxes. Hamilton’s enforcement of the tax required

every still, no matter how small, to be registered with

the federal government. U.S. Statutes at Large, 1

Stat. 199, 205 (1791) He did not, however, ban home

stills.

Distilling continued to be an active part of American life. Still technology continued to improve over

time. Meacham, supra 103. In 1801, with the invention

of a condenser, distilling found more patrons, with

early authors noting, “‘we find men of science, men of

capital, lawyers, doctors, and merchants abandoning

other pursuits to learn the art of extracting spirit from

7

grain.’” Id. “Distilling was no longer merely a household

chore or a farmer’s practice; it had become a hobby.”

“Revenue over Reason: A Case for Home Distilling,” is

formatted as: Ben Semark, Revenue over Reason: A

Case for Home Distilling, CEI BLOG (Aug. 6, 2026),

https://cei.org/blog/revenue-over-reason-a-case-forhome-distilling/.

Between 1780 and 1800, “25 percent of households

in Augusta County, Virginia, owned stills.” Meacham,

supra 106. In 1810, “Bourbon County boasted of 128

distillers, one of every five farmers in the county was

a distiller, a statistic that mirrored much of the

Commonwealth of Kentucky.” Bourbon and Kentucky:

A History Distilled at 36:35 (Witnessing History Education Foundation 2008), distillerytrail.com

The Whisky Act was not the only time Congress

imposed taxes related to spirits. To fund the War of

1812, Congress imposed a temporary tax to fund the

military in 1813. Act of July 24, 1813, ch. XXV, 3 Stat.

42. But, rather than taxing alcohol, Congress imposed

a license tax on distillers and retailers. Act of July 24,

1813, ch. XXV, 3 Stat. 42 and Act of Aug. 2, 1813, ch.

39, 3 Stat. 72. For distillers, the license tax was based

on the cubic capacity of the still and the license term

length purchased. Act of July 24, 1813, ch. XXV, 3 Stat.

42. The tax applied to anyone owning or superintending

a still. Id.

For enforcement purposes, the law allowed

collectors “to apply at all reasonable times for admittance

into any distillery or place where any still or stills are

kept or used” to examine and measure the still. Act of

July 24, 1813, ch. 25, § 6, 3 Stat. 42, 43. Refusing

admittance carried a $500 forfeiture. Id. Unlike the

1868 Act at 26 U.S.C. § 5203, the 1813 law provided

8

for reasonable enforcement measures for access and

imposed a monetary penalty rather than forcible entry.

The law also imposed penalties for false statements

and rewards for informers. Act of July 24, 1813, ch.

25, § 3, 3 Stat. 42, 43. The law was scheduled to sunset

at the end of the war. Act of July 24, 1813, ch. 25, § 14,

3 Stat. 42, 44.

In December 1814, Congress added a 20 cent-pergallon excise on the spirits, in addition to the license

tax. Act of Dec. 21, 1814, ch. 15, §§ 1, 23-24. In 1816,

Congress abolished the per-gallon excise tax. Act of

Apr. 19, 1816, ch. 58, §§ 1-3. In December 1817, the

distiller license tax was repealed. Act of Dec. 23, 1817,

ch. 1, §§ 1-2. Federal internal taxation of spirits ended

entirely until the Civil War.

The 1813 tax was better tolerated than the

Whiskey Act. David D. Stewart & Joseph J. Thorndike,

Drunk Tax History, TAX NOTES TALK (Apr. 1, 2018),

taxnotes.com. It allowed the government to successfully

tax spirits to help manage its revenue crisis without

imposing any ban on home distilling. This runs counter

to the factual basis the Sixth Circuit relied on in

finding the 1868 tax to be a “necessary and proper”

measure for collecting taxes. It shows that the government is capable of collecting taxes without resorting to

extreme measures of banning traditionally legal activities in the home of Americans.

The Civil War revived a permanent excise tax on

spirits. To finance the war, Abraham Lincon signed

the Revenue Act of 1862, ch. 119, 12 Stat. 432 (1862),

setting the tax at 20 cents per gallon on distilled spirits.

Two years into the war, in June 1864, Congress

increased the taxes to $1.50 per gallon. Act of June 30,

1864, ch. 173, § 55. By the end of the war in 1865, spirit

9

excise taxes peaked to $2.00 per gallon. Act of June 30,

1864, ch. 173, § 55.

With exception of the Whiskey Act and the War

of 1812, “from the establishment of our government

till the outbreak of the Civil War, distilled spirits were

for the most part comparatively free from taxation . . . ”

Jeremiah W. Jenks, The Development of the Whiskey

Trust, 4 Q. J. ECON. 241, 297 (1890). As such, spirits

were cheap and there was little incentive to overproduce

in the years leading up to 1862. Id. When Congress

began rolling out the taxes and raising it over those

two years, it did not make the new rates effective

immediately. Id. Instead, the increases were announced

months in advance. Act of June 30, 1864, ch. 173, § 55.

While doing so, Congress also exempted all existing

liquor supplies that were already distilled before the

taxes took effect.

The advance notice of tax increases created tremendous speculation in whiskey. Jenks, supra. As a result,

“[t]he stock of whiskey and high wines accumulated in

the country … without precedent.” Id. The gains

realized by stock holders in anticipation of the tax

increase were estimated at no less than $50,000,000.

Id. After the speculation ended, excess production

capacity and huge stockpiles made it nearly impossible

for honest distillers—those not defrauding the revenue

office—to survive. Id. The surplus product, high tax

and decline in demand, “kept the distilling business in

a comparatively depressed condition after the speculative period following the war.” Id. The excessive

$2.00 per gallon tax on a 30 cent per gallon product

led to massive tax evasion. Id.

In an investigative Committee Report dated March

12, 1868, Representative Charles Henry Van Wyck

10

from the Committee on Retrenchment discussed his

investigation of rampant fraud that resulted from the

exorbitant tax hike. H.R. Rep. No. 40-24, at 1-8 (1868)

(Whiskey Frauds report from the H. Comm. on Retrenchment), reprinted in 1357 U.S. Serial Set. Fraudulent

conduct, however, was not limited to distillers, and

the problems most certainly did not come from home

distillers. Id. Referring to the group as a “ring,”

VanWyck described a crime syndicate that comprised

of commercial distillers, government officers and

officials who collectively profited from the rampant

fraud, noting in some case “warehouses had the

appliances of fraud connected with them easily to be

seen and detected except by officers sworn to protect

the revenue.” Id. According to Van Wyck, “[t]he whiskey

ring is stronger than political combinations, controlling

the selection of inspectors; in some instances it has

dictated the appointment of consuls, to have a willing

tool at foreign ports.” Id. “The proof showed wonderful

facility in bribing storekeepers carrying the keys, and

the assessors making returns for the distillery.” Id. In

one case, a distillery owner “engaged a political partner,

went to another district, paid no tax to the government,

while officers knew he was publicly manufacturing.”

Id.

The report found the existing laws created a

protection paradox: “Congress attempted to check this

class of frauds by authorizing the appointment of an

inspector for each distillery, requiring him to be paid

by the distiller, thus making him a creature of the

distiller.” Id. To solve the problem, he proposed:

First of all is needed a simplification of the

system and abolition of bonded warehouses,

that the great and rapacious army of officials

11

may be mustered out. Second, that the tax

should be materially reduced, and collected

at the still estimating the capacity. All plans

looking to a correct estimate of production

are liable to serious objections and many

abuses, but the capacity system has probably

the least. Experts can ascertain to a reasonable

certainty, basing judgment upon quantity of

beer, fermenting power, size of still, surface

of heat, and extent of’ steam; then storekeepers,

agents, and inspectors might be consigned to

the honest walks of life. The tax should be

reduced to fifty cents per gallon. The history

of all nations shows that a tax greatly in excess

of the cost of production increases the risk of

determined frauds and violations. Smuggling

is never so generally practiced or so remunerative as when duties are high.

Id.

VanWyck’s investigative report identifies corruption and high taxes as the drivers of the widespread

fraud that Congress was attempting to tackle. In fact,

he noted “[d]istillation from grain requires cumbrous

machinery, and the place cannot easily be kept secret.”

Id. The problem was not that officials could not

observe the stills or spirits being moved, but because

they were in the pockets of commercial distillers and

turned a blind eye. Id. He recommended lowering the

tax rate based on history: “[w]e ought not to ignore the

experiences of the world, certainly not of our own; in

1864, when the tax was twenty and sixty cents, nearly

as much revenue was realized as in 1866,” when the

tax was raised to $2.00. Id.

12

The records are consistent with VanWyck’s observation. In 1864, spirit taxes generated $28,431,797.83

in revenue. Bruce E. Stewart, Moonshiners and

Prohibitionists: The Battle over Alcohol in Southern

Appalachia 78 (2011). After Congress raised taxes

from 60 cents to $2 a gallon, “revenues dropped to

$15,995,701.66 in 1865, as high taxes encouraged

evasion.” Id. Home distillation was not the root cause

of tax evasion. It was high taxes that distorted the

market and made illegal distillation profitable. When

taxes were reasonable at the beginning of the Civil

War, there was no incentive to produce illegal spirits.

In June 1868, head of the special revenue

committee David A. Wells, Commissioner of Internal

Revenue, E.A. Rollins, and U.S. Secretary of Treasury

Hugh McCulloch met in Washington and arrived at

the same conclusion as Van Wyck. Id. They pointed to

“two causes as operating to reduce revenue: an

excessively high [tax] rate, and the inefficiency and

corruption of officials.” Id. Wells later explained that

“in framing for the assessment and collection of taxes,

to know when the maximum revenue point in the case

of each tax is reached, and to recognize that beyond

that point the government ‘over-reaches itself.” Id.

Soon after taxes on spirits were lowered from

$2.00 to 50 cents, tax revenue jumped from just over

$13 million in 1868 to more than $45 million in 1869.

Joseph J. Thorndike, An Army of Officials: The Civil

War Bureau of Internal Revenue, 93 TAX NOTES 1739

(2001). Thus, the government’s failure to collect taxes

stemmed not from home distilleries, but from the

excessive tax rate itself. However, despite the neartripling of tax revenue, tax fraud in various regions of

America remained persistent.

13

But, the prevalence of tax-evasion in those regions

was attributable less to home distilling and more to

government corruption. In Vinegar Hill, Brooklyn,

where tax-evasion distillation occurred in the basement

of residential buildings, the government’s failure to

collect tax revenue stemmed from blatant corruption.

Rebecca Dalzell, The Whiskey Wars That Left Brooklyn

in Ruins, SMITHSONIAN MAG. (Nov. 18, 2014), https://

www.smithsonianmag.com/history/whiskey-wars-leftbrooklyn-ruins-180953352/. In fact, between 1869-1871,

the federal government, exercising its expanded powers,

repeatedly raided the Vinegar Hill area. Id. Yet, it had

little success because “law enforcement was on its

payroll.” Id. So, “the neighborhood was never taken by

surprise.” Id. In 1871, “when 1,400 soldiers stormed

the district . . . , they took just one still and no prisoners”

because “clearly the whiskey men were tipped beforehand.” Id.

Tax evasion also continued in parts of Appalachia,

where moonshiners hid their stills “in unfrequented

districts, sometimes in the midst of an impenetrable

jungle, or laurel brake, and carefully concealed when

not in operation.” Thorndike, supra. Others dug tunnels

leading to a cave, where they hid their stills. Id. Some

moonshiners hid their stills in a swamp. Id. In

Appalachia, tax evasion persisted, and the government’s

failure to collect tax revenue there was not attributable

to home distilling because it did not take place in the

home.

In 1871, “Republican party operatives formed the

Whiskey Ring . . . to raise funds for political campaigns

in Missouri and other western states.” Timothy Rives,

Grant, Babcock, and the Whiskey Ring, PROLOGUE, Fall

14

2000, https://www.archives.gov/publications/prologue/

2000/fall/whiskey-ring-1. The ring’s operation was:

[c]omplex in detail, but simple in design, the

ring made money by selling more whiskey

than it reported to the Treasury Department.

Its success required collusion at every point

of the production, distribution, and taxation

process. To pull it off, ring leaders recruited,

impressed, and blackmailed distillers, rectifiers, gaugers, storekeepers, revenue agents,

and Treasury clerks into the operation. They

split the seventy-cents-a-gallon tax money.

...

Id.

By 1873, the ring developed into “a purely

criminal enterprise, defrauding the federal treasury of

an estimated million and a half dollars a year.” Id. It

continued until Ulysses S. Grant appointed Benjamin

H. Bristow as Secretary of the Treasury in June 1874.

Matthew C. Stephenson & Mariano-Florentino Cuéllar,

Taming Systemic Corruption: The American Experience

and Its Implications for Contemporary Debates, 151

World Dev. 105753 at 4 (2022). Bristow “exposed a

ring of distillers, shopkeepers, and corrupt government

agents who had colluded to defraud the U.S. government

of millions in tax dollars.” Id. The Whisky Ring affair

was the most prominent corruption episode of Ulysses

S. Grant’s second administration. Id. It resulted in

more than three hundred arrests, seizure of distilleries

and rectifiers and criminal prosecutions with a hundred

convictions. Id. Bristow’s investigation ended when it

began implicating senior officials with close ties to the

Grant Administration. Id.

15

Tax evasion persisted as long as corruption did,

despite draconian provisions that required distillers

to hand over their distillery keys, gave inspectors

round-the-clock access to the premises, and authorized

them to use whatever force was necessary to gain

entry. In places where corruption was less of an issue,

illegal distillation did not take place in homes, but in

the woods. These facts demonstrate that banning home

distillation was excessive and failed to meaningfully

boost the federal government’s tax-collecting power

over spirits.

In terms of boosting tax collection, the 1868 Act’s

most effective feature was the reduction in the tax

rate. Systemic corruption—the root cause of widespread

tax evasion at distilleries—was ultimately ended not

by the ban on home distillation, but by sweeping anticorruption reform and enforcement across the United

States. Id. In Appalachia, it was the lower taxes, rise in

the temperance movement and the pull of industrialization, rather than the 1868 enforcement measures,

that left moonshiners behind. Stewart, supra 117

(2011).

The history of distillation and its role in early

America is well established. What started as a regular

part of life in colonial America evolved into a hobby by

America’s birth, as technology around stills improved.

Even when Americans did not take too well to taxes

levied during the Whisky Rebellion, the founding fathers

did not introduce laws so intrusive as to prohibit

Americans from the traditional practice of distilling

spirits at own homes. And in 1812, Americans rose to

the occasion, paying their share of spirt/distillation

taxes, when taxes were levied to defend our fledgling

nation.

16

History also shows that since then Americans

paid tax revenues, when tax rates were reasonable at

the beginning of the Civil War and soon after the tax

rates were cut in 1868. It was only when Congress

raised taxes to an exorbitant rate through poorly

calculated means that rampant tax evasion, cited so

extensively by the Sixth Circuit, arose. The historical

record attributes the government’s inability to collect

taxes to commercial distillers, corrupt revenue officials,

the tax structure, and the collection system, not home

distillation.

CONCLUSION

The petition for a writ of certiorari should be

granted. The ban on home distilling raises constitutional

questions of national and historic significance that

remain genuinely unresolved. Since McNutt, supra and

Ream, supra, West Virginia (2024), New Hampshire

(2024), and Maine (2025) have joined Missouri and

Massachusetts in permitting home distillation. See

28-A M.R.S. § 1358, N.H. Rev. Stat. Ann. § 175:5-b, I, W.

Va. Code § 60-6-10(b), Mass. Gen. Laws ch. 138, § 3, and

Mo. Rev. Stat. § 311.055. Five states now affirmatively

permit the home production of spirits for personal use,

underscoring the growing practical significance of

federalism question that is also at issue. As more states

affirmatively choose to permit conduct that federal

law categorically forbids, the consequences of the constitutional question—and the cost of leaving it unresolved

—only continue to grow.

17

The Fifth Circuit is correct in finding the ban unconstitutional. The ban not only fails to raise revenue

under the Tax Power, but even under the Sixth Circuit’s

treatment of the Necessary and Proper Clause as an

independent basis for expanding congressional power,

it is not plainly adapted to a constitutional—let alone

legitimate—end. Ream supra 7 quoting McCulloch v.

Maryland, 17 U.S. 316, 421 (1819). The founding fathers

never had to resort to banning home distilling to collect

taxes, when distilling was a widely practiced activity.

The tax evasion that Congress tried to address was a

product of high taxes, poor roll out, and corruption–

not home distilling. The ban was ultra vires, when

enacted and even more so now. Amicus curiae respectfully urge this court to grant Petitioner Ream’s petition

for certiorari.

Respectfully submitted,

Ondray T. Harris

Counsel of Record

Soriya R. Chhe

Marin Murdock

COMPETITIVE ENTERPRISE INSTITUTE

1310 L Street NW, 7th Floor

Washington, DC 20005

(202) 331-2265

ondray.harris@cei.org

Counsel for Amicus Curiae

August 20, 2026