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 THE TREASURY, ET

AL.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE ADVANCING AMERICAN

FREEDOM; LIBERTY JUSTICE CENTER; AMERICAN

LEGISLATIVE EXCHANGE COUNCIL (ALEC); AMERICAN

ASSOCIATION OF SENIOR CITIZENS;

(Additional Amici Curiae Listed on Inside Cover)

Reilly Stephens

J. Marc Wheat

Liberty Justice Center

Counsel of Record

1629 K Street N.W.

Timothy Harper (Admitted in DC)

Suite 300

Advancing American

Washington, D.C. 20006 Freedom, Inc.

512-481-4400

801 Pennsylvania Avenue, N.W.

rstephens@ljc.org

Suite 930

Washington, D.C. 20004

(202) 780-4848

MWheat@advancing

americanfreedom.com

August 20, 2026

Counsel for Amici Curiae

AMERICANS FOR FAIR TREATMENT; COMMITTEE FOR

JUSTICE; ILLINOIS POLICY INSTITUTE; INDEPENDENT

WOMEN’S LAW CENTER; INSTITUTE FOR POLICY

INNOVATION; INTERNATIONAL CONFERENCE OF

EVANGELICAL CHAPLAIN ENDORSERS; JCCWATCH.ORG;

LOUISIANA FAMILY FORUM; MEN AND WOMEN FOR A

REPRESENTATIVE DEMOCRACY IN AMERICA, INC.;

MOUNTAIN STATES LEGAL FOUNDATION; NEW YORK

STATE CONSERVATIVE PARTY; NORTH CAROLINA VALUES

COALITION; NSIC INSTITUTE; ORTHODOX JEWISH

CHAMBER OF COMMERCE; RIO GRANDE FOUNDATION; 60

PLUS ASSOCIATION; SOUTHEASTERN LEGAL FOUNDATION;

TAXPAYERS PROTECTION ALLIANCE; TEA PARTY

EXPRESS; TRADITION, FAMILY, PROPERTY, INC.;

UNIFY.US; WOMEN FOR DEMOCRACY IN AMERICA, INC.;

YANKEE INSTITUTE; SHAWNNA BOLICK, ARIZONA STATE

SENATOR, DISTRICT 2; MICHAEL FARRIS, ATTORNEY;

CHARLIE GEROW, FORMER VICE CHAIRMAN, AMERICAN

CONSERVATIVE UNION; TIM JONES, FORMER SPEAKER,

MISSOURI HOUSE, FOUNDER, LEADERSHIP FOR AMERICA

INSTITUTE; SETON MOTLEY, PRESIDENT, LESS

GOVERNMENT; MICHAEL C. MUNGER, PROFESSOR,

POLITICAL SCIENCE AND ECONOMICS, DUKE UNIVERSITY;

MELISSA ORTIZ, PRINCIPAL & FOUNDER, CAPABILITY

CONSULTING; ANN SCHOCKETT, FORMER PRESIDENT,

NATIONAL FEDERATION OF REPUBLICAN WOMEN;

RICHARD VIGUERIE, CHAIRMAN, CONSERVATIVEHQ.COM;

AND HON. WILLIAM WAGNER (RET), DISTINGUISHED

PROFESSOR OF LAW EMERITUS IN SUPPORT OF

PETITIONER

i

QUESTION PRESENTED

1. Whether the federal prohibition on home

distilling exceeds Congress’s enumerated powers.

2. Whether the Court should overrule Raich or at

least clarify that Congress’s commerce power does not

extend to regulation of local, noncommercial conduct

and that its exercise is subject to meaningful judicial

scrutiny.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

TABLE OF AUTHORITIES .....................................iii

STATEMENT OF INTEREST OF AMICI

CURIAE ............................................................... 1

INTRODUCTION AND SUMMARY OF THE

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

ARGUMENT ............................................................. 5

I. The Commerce Clause Is a Limited Delegation

of Power, Not a Grant of General Police Power .. 5

A. The text of the Commerce Clause, understood

according to its original meaning, grants to

Congress only the ability to regulate

interjurisdictional trade ................................. 6

B. Contextual evidence demonstrates that the

Commerce Clause grants to Congress only the

ability to regulate interjurisdictional trade ... 8

II. The Ban on Home Distilling is Unconstitutional

Because it Depends on a Principle That Would

Allow the Federal Government Overbroad

Regulatory Power Under the Taxing and

Commerce Clauses and Thus Undermine the

Constitutional Bargain Between the People,

the States, and the Federal Government .......... 17

CONCLUSION........................................................ 26

iii

TABLE OF CITED AUTHORITIES

Cases:

Page(s)

Gibbons v. Ogden,

22 U.S. 1 (1824) ................................................. 19

Gonzales v. Raich,

545 U.S. 1 (2005) ............................................. 6, 7

Hobby Distillers Ass’n v. Alcohol and Tobacco Tax

and Trade Bureau,

740 F. Supp. 3d 509 (N.D. Tex. 2024), aff'd as

modified sub nom. ........................................... 3, 4

Janus v. AFSCME,

138 S. Ct. 2448 (2018) ......................................... 2

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............................. 15

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ......... 2, 4, 17-20, 24

McNutt v. U.S. Department of Justice,

173 F.4th 204 (5th Cir. 2026) .......................... 3, 4

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ........................................... 19

Ream v. U.S. Dept. of the Treasury,

174 F.4th 480 (6th Cir. 2026) .............................. 3

United States v. Comstock,

560 U.S. 126 (2010) ........................................... 18

United States v. Lopez,

514 U.S. 549 (1995) .................. 5-7, 11, 13, 14, 16

United States v. The William,

28 F. Cas. 614 (1808) ......................................... 13

iv

Wickard v. Filburn,

317 U.S. 111 (1942) ....................................... 5, 14

Constitutional Provisions

U.S. Const. amend. X .............................. 4, 14, 21, 24

U.S. Const. art. I, § 8 ........................................ 14, 16

U.S. Const. art. I, § 8, cl. 1 ........................................ 3

U.S. Const. art. I, § 8, cl. 3 ........................................ 4

U.S. Const. art. I, § 8, cl. 18 ................................ 4, 17

U.S. Const. art. VI, cl. 2 .......................................... 24

Statutes

26 U.S.C. § 5178(a)(1)(B) .......................................... 3

26 U.S.C. § 5601(a)(6) ............................................... 3

Regulations

27 C.F.R. § 19.51-19.52 ............................................. 3

Other Authorities

1 Debates on the Constitution 145 (Bernard

Bailyn ed., 1993) ................................................ 12

Albert S. Abel, The Commerce Clause in the

Constitutional Convention and in

Contemporary Comment 25 Minn. L.

Rev.432 (1941) ................................................... 10

Randy Barnett, New Evidence of the Original

Meaning of the Commerce Clause, 55 Ark. L.

Rev. 847 (2003) .................................................... 6

Randy Barnett, The Original Meaning of the

Commerce Clause, 68 U. Chi. L. Rev. 101

(2001) ......................................................... 7, 8, 13

v

Jonathan Elliot, ed, 2 The Debates in the Several

State Conventions on the Adoption of the

Constitution (Taylor & Maury 2d ed. 1863) 13, 23

Edwin J. Feulner, Jr., Conservatives Stalk the

House: The Story of the Republican Study

Committee 212 (Green Hill Publishers, Inc.

1983 ..................................................................... 1

Independence Index: Measuring Life, Liberty

and the Pursuit of Happiness, Advancing

American Freedom available at

https://theindependenceindex.org/ ...................... 1

Gary S. Lawson, The Rise and Rise of the

Administrative State, 107 Harv. L. Rev. 1231

(1994) ................................................................. 17

George Mason, The Objections of the Honorable

George Mason to the Proposed Federal

Constitution, in Pamphlets of the

Constitution of the United States, published

during its Discussion by the People 331 (Paul

Leicester Ford ed., 1888) available at

https://oll.libertyfund.org/titles/ramsaypamphlets-on-the-constitution-of-the-unitedstates-1787-1788 .................................................. 9

Robert G. Natelson, The Enumerated Powers of

the States 3 Nev. L. J. 469 (2002-2003) ............. 24

Robert G. Natelson, The Founders Interpret the

Constitution: The Division of Federal and

State Power, 19 Fed. Soc. Rev. 60 (2018) ..... 21-24

Robert Natelson, More News on Powers Reserved

Exclusively to the States, 20 Fed. Soc. Rev. 92

(2019) ........................................................... 22, 24

vi

Antonin Scalia and Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 435

(Thomson/West 2012) ........................................ 22

The Antifederalist No. 32, at 82-86 (Brutus)

(Morton Borden ed. 1965) .................................... 9

The Federalist No. 17 (Alexander Hamilton)

(George W. Carey and James McClellan,

eds., The Liberty Fund 2001) ...................... 12, 22

The Federalist No. 33 (Alexander Hamilton)

(George W. Carey and James McClellan,

eds., The Liberty Fund 2001) .................. 5, 10, 20

The Federalist No. 45 (James Madison) (George

W. Carey and James McClellan, eds., The

Liberty Fund 2001 .................................... 9-11, 23

The Federalist No. 46 (James Madison) (George

W. Carey and James McClellan, eds., The

Liberty Fund 2001) ...................................... 23, 25

1

STATEMENT OF INTEREST OF AMICI CURIAE1

Advancing American Freedom (AAF) is a nonprofit

organization that promotes and defends policies that

elevate traditional American values, including the

uniquely American idea that all people are created

equal and endowed by their Creator with unalienable

rights to life, liberty, and the pursuit of happiness.

AAF “will continue to serve as a beacon for

conservative ideas, a reminder to all branches of

government of their responsibilities to the nation,”2

and believes that the governmental structures

established by the Constitution are necessary for the

preservation of the liberty of the people.3 Advancing

American Freedom files this brief on behalf of its 7,555

members in Ohio and its 164,819 members

nationwide.

The Liberty Justice Center is a nonprofit,

nonpartisan public-interest litigation center that

seeks to protect economic liberty, private property

rights, free speech, and other fundamental rights. The

Liberty Justice Center pursues its goals through

strategic, precedent-setting litigation to revitalize

All parties have received timely notice of the filing of this

amicus brief. No counsel for a party authored this brief in whole

or in part. No person other than Amicus Curiae and its counsel

made any monetary contribution intended to fund the

preparation or submission of this brief.

2 Edwin J. Feulner, Jr., Conservatives Stalk the House: The Story

of the Republican Study Committee 212 (Green Hill Publishers,

Inc. 1983).

3 Independence Index: Measuring Life, Liberty and the Pursuit

of Happiness, Advancing American Freedom available at

https://theindependenceindex.org/.

1

2

constitutional restraints on government power and

protections for individual rights. See, e.g. Janus v.

AFSCME, 138 S. Ct. 2448 (2018). This case interests

amicus because the power to tax is the power to

destroy. McCulloch v. Maryland, 17 U.S. (4 Wheat.)

316, 400 (1819).

Amici American Legislative Exchange Council

(ALEC); American Association of Senior Citizens;

Americans for Fair Treatment; Committee For

Justice; Illinois Policy Institute; Independent

Women’s Law Center; Institute for Policy Innovation;

International Conference of Evangelical Chaplain

Endorsers; JCCWatch.org; Louisiana Family Forum;

Men and Women for a Representative Democracy in

America, Inc.; Mountain States Legal Foundation;

New York State Conservative Party; North Carolina

Values Coalition; NSIC Institute; Orthodox Jewish

Chamber Of Commerce; Rio Grande Foundation; 60

Plus Association; Southeastern Legal Foundation;

Taxpayers Protection Alliance; Tea Party Express;

Tradition, Family, Property, Inc.; Unify.US; Women

for Democracy in America, Inc.; Yankee Institute;

Shawnna Bolick, Arizona State Senator, District 2;

Michael Farris, Attorney; Charlie Gerow, Former Vice

Chairman, American Conservative Union; Tim Jones,

Former Speaker, Missouri House, Founder,

Leadership for America Institute; Seton Motley,

President, Less Government; Michael C. Munger,

Professor, Political Science and Economics, Duke

University; Melissa Ortiz, Principal & Founder,

Capability Consulting; Ann Schockett, Former

President, National Federation of Republican Women;

Richard Viguerie, Chairman, ConservativeHQ.com;

and Hon. William Wagner (Ret), Distinguished

3

Professor of Law Emeritus, believe, as did America’s

Founders, that the maintenance of the separation of

government powers into three co-equal branches is

essential to ordered liberty.

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

This case concerns the statutory and regulatory

prohibition of the home distillation of spirits under 26

U.S.C. § 5178(a)(1)(B) and § 5601(a)(6) and 27 C.F.R.

§ 19.51-19.52. This prohibition touches activity of the

most local type, taking place purely in the home of an

individual or family. So long as Congress regulates

such behavior, the constitutional bargain the states

accepted when they ratified the Constitution is

undermined.

Splitting with the Fifth Circuit, which found the

home-distilling ban to be beyond the power of

Congress to enact, McNutt v. U.S. Department of

Justice, 173 F.4th 204, 221-22 (5th Cir. 2026), the

Sixth Circuit below ruled that Congress validly

enacted the ban as an exercise of its Necessary and

Proper Clause power to carry into execution its power

under the Taxing Clause. Ream v. U.S. Dept. of the

Treasury, 174 F.4th 480, 489 (6th Cir. 2026).

Each of the government’s three theories advanced

below to sustain Congress’s power to enact the ban

fails. As both circuits concluded, the Tax Clause, U.S.

Const. art. I, § 8, cl. 1, itself, does not empower

Congress to ban home distilling. Neither court

addressed the Commerce Clause but the district court

in McNutt correctly found that it does not empower

4

Congress to enact the home-distilling ban. Hobby

Distillers Ass’n v. Alcohol and Tobacco Tax and Trade

Bureau, 740 F. Supp. 3d 509, 534 (N.D. Tex. 2024)

aff'd as modified sub nom. McNutt v. US Dep't of Just.,

173 F.4th 204 (5th Cir. 2026).4 And Congress cannot

use the Necessary and Proper Clause to “pass laws for

the accomplishment of objects not intrusted to the

government.” McCulloch v. Maryland, 17 U.S. 316,

423 (1819).

The Constitution vests in Congress the power to

“regulate Commerce . . . among the several States.”

U.S. Const. art. I, § 8, cl. 3. The original meaning of

this clause is clear: commerce meant trade and among

the states meant—well—among the states. A broader

reading turns much of the rest of the Constitution,

including the Tenth Amendment, on its head.

Similarly, the original meaning of the Necessary

and Proper Clause confers on Congress only the power

to carry out the powers vested in the federal

government. Article I empowers Congress to “make all

Laws which shall be necessary and proper for carrying

into Execution the foregoing Powers, and all other

Powers vested by this Constitution in the Government

of the United States, or in any Department or Officer

thereof.” U.S. Const. art. I, § 8, cl. 18. The Framers

assured the public while it considered ratification that

the Necessary and Proper Clause expands Congress’s

powers but only vested in it those powers which would

4 “[T]he Constitution is written to prevent societal amnesia of the

defined limits it places on this government of and by the people.

That is where the judiciary must declare when its coequal

branches overstep their Constitutional authority. Congress has

done so here.” Hobby Distillers Ass'n, 740 F. Supp. 3d at 536.

5

have been inherent in its other authorities and

responsibilities.5

The founding generation did not—and almost

assuredly would not have—ratified a constitution that

gave the federal government the power to prohibit the

trivia of local life as home distilling. The Constitution

they did ratify limits Congress to those powers

enumerated. Because no enumerated power supports

the home-distilling ban, it must be struck down.

ARGUMENT

I.

The Commerce Clause Is a Limited

Delegation of Power, Not a Grant of General

Police Power.

During much of the twentieth century, the Court

failed to enforce the original meaning of the Commerce

Clause, instead allowing Congress to exercise

expansive power over even wholly local activity.

Infamously, the Court stepped aside as Congress

expanded its reach to regulate such minutiae as a

man’s growing of wheat for use on his own farm.

Wickard v. Filburn, 317 U.S. 111 (1942).

The Court has, however, recognized limits to that

power in recent decades. In United States v. Lopez, the

Court found that the Gun-Free School Zones Act of

1990 was beyond the power of Congress to enact under

the Commerce Clause. 514 U.S. 549 (1995). As the

Court concluded, to allow Congress to regulate even

the intrastate possession of a handgun without

5 The Federalist No. 33, at 158 (Alexander Hamilton) (George W.

Carey and James McClellan, eds., The Liberty Fund 2001).

6

showing some greater relation to interstate commerce,

the Court “would have to pile inference upon inference

in a manner that would bid fair to convert

congressional authority under the Commerce Clause

to a general police power of the sort retained by the

States.” Id. at 568.

Certainly, if Congress can prohibit under the

Commerce Clause such local, noncommercial activity

as home distilling, it could usurp much of the power

the constitutional bargain reserved to the states.

A. The text of the Commerce Clause,

understood according to its original

meaning, grants to Congress only the

ability to regulate interjurisdictional

trade.

The original meaning of the Commerce Clause is

simple: Congress may “regulate the buying and selling

of goods and services trafficked across state lines.”

Gonzales v. Raich, 545 U.S. 1, 57 (2005) (Thomas, J.,

dissenting) (citing Lopez, 514 U.S. at 586-89 (Thomas,

J., concurring)). This understanding of “commerce” as

trade was common not only to the drafters of the

Constitution but to the general public, including those

who ratified it. Id. (citing Randy Barnett, New

Evidence of the Original Meaning of the Commerce

Clause, 55 Ark. L. Rev. 847, 857-62 (2003)).

“[W]hen

Federalists

and

Anti-Federalists

discussed the Commerce Clause during the

ratification period, they often used trade (in its

selling/bartering

sense)

and

commerce

interchangeably.” Lopez, 514 U.S. at 586 (Thomas, J.,

concurring). Commerce did not include, on the other

7

hand, agriculture and manufacturing, which were

wholly intrastate activities. Gonzales, 545 U.S. at 58

(Thomas, J., dissenting) (“Commerce, or trade, stood

in contrast to the productive activities like

manufacturing and agriculture.”). In fact, “the term

‘commerce’ was used in contradistinction to” such

“productive activities.” Lopez, 514 U.S. at 586.

“Throughout founding-era dictionaries, Madison’s

notes from the Constitutional Convention, the

Federalist Papers, and the ratification debates, the

term ‘commerce’ is consistently used to mean trade or

exchange—not all economic or gainful activity that

has some attenuated connection to trade or exchange.”

Gonzales, 545 U.S. at 58 (Thomas, J., dissenting)

(citing Lopez, 514 U.S. at 586-87 (Thomas, J.,

concurring) (quoting Randy Barnett, The Original

Meaning of the Commerce Clause, 68 U. Chi. L. Rev.

101, 112-25 (2001)). Of thirty-four appearances of the

term “commerce” in Madison’s notes on the

constitutional convention:

Eight of these are unambiguous references to

commerce with foreign nations which can only

consist of trade. In every other instance, the

terms “trade” or “exchange” could be

substituted for the term “commerce” with the

apparent meaning of the statement preserved.

In no instance is the term “commerce” clearly

used to refer to “any gainful activity” or

anything broader than trade.6

6 Randy Barnett, The Original Meaning of the Commerce Clause,

68 U. Chi. L. Rev. 101, 114-15 (2001).

8

Similarly, “[i]n none of the sixty-three appearances

of the term ‘commerce’ in The Federalist Papers is it

ever used to unambiguously refer to any activity

beyond trade or exchange.”7 One helpful example of

the use of “commerce” comes in Federalist 35.

Hamilton asks, “Will not the merchant understand

and be disposed to cultivate, as far as may be proper,

the interests of the mechanic and manufacturing arts

to which his commerce is so nearly allied?”8 Further,

in the reports of the ratification debates, “commerce”

“was uniformly used to refer to trade or exchange,

rather than all gainful activity.”9

“Commerce . . . among the several states” means

today what it meant more than two hundred years ago

when the Constitution was ratified: trade across state

lines. The Commerce Clause does not empower

Congress to touch all economic activity, much less all

activity that might have some attenuated effect on

interstate trade. The textual evidence is clear. It is

also buttressed by contextual evidence that those who

ratified the Constitution did not believe themselves to

be granting Congress power over the minutiae of

intrastate life.

B. Contextual evidence demonstrates that

the Commerce Clause grants to Congress

only

the

ability

to

regulate

interjurisdictional trade.

Not only is the evidence supporting the narrow

meaning of the term “commerce” overwhelming, but

7 Id. at 116.

8 Id.

9 Id.

9

the historical and constitutional context also demands

a narrow interpretation of the power granted by the

Clause.

The Antifederalists were deeply concerned that the

federal government would swallow up states’

authority over internal affairs, inducing The

Federalist Papers’ assurances that the general

government’s powers were “few and defined.”10 Of

particular concern to the Antifederalists was the

Necessary and Proper Clause.11 For example, George

Mason warned that, under that clause, the federal

government could “extend [its] power as far as [it]

shall think proper; so that the state legislatures have

no security for the powers now presumed to remain to

them; or the people for their rights.”12

Hamilton dismissed such concerns, accusing the

Antifederalists of holding the Necessary and Proper

Clause up “in all the exaggerated colors of

misrepresentation as the pernicious engines by which

10 The Federalist No. 45, at 241 (James Madison) (George W.

Carey and James McClellan, eds., The Liberty Fund 2001).

11 See, e.g., The Antifederalist No. 32, at 82-86 (Brutus) (Morton

Borden ed. 1965) (“If then the objects of this power cannot be

comprehended, how is it possible to understand the extent of that

power which can pass all laws which shall be necessary and

proper for carrying into execution? It is truly incomprehensible.

A case cannot be conceived of, which is not included in this

power.”).

12 George Mason, The Objections of the Honorable George Mason

to the Proposed Federal Constitution, in Pamphlets of the

Constitution of the United States, published during its Discussion

by the People 331 (Paul Leicester Ford ed., 1888) available at

https://oll.libertyfund.org/titles/ramsay-pamphlets-on-theconstitution-of-the-united-states-1787-1788.

10

their local governments were to be destroyed and their

liberties exterminated,” when, in fact, it could “be

affirmed with perfect confidence that the

constitutional operation of the intended government

would be precisely the same, if these clauses were

entirely obliterated, as if they were repeated in every

article.”13

Unlike the Necessary and Proper Clause, the

Commerce Clause caused conspicuously little

controversy during the pre-ratification debates.14

Madison noted that, in relation to the Articles of

Confederation, “[t]he regulation of commerce . . . is a

new power; but that seems to be an addition which few

oppose, and from which no apprehensions are

entertained.”15 This demonstrates that at the time of

the Founding, even those who were worried about an

expansive

federal

government

were

largely

unconcerned with the expansiveness of the commerce

power, clearly indicating that that power was not

understood by the founding generation to be the grant

of broad power it acts as today.16

13 Hamilton, supra note 5, at 158.

Albert S. Abel, The Commerce Clause in the Constitutional

Convention and in Contemporary Comment 25 Minn. L. Rev. 432,

434 (1941) (“Among the first things that strikes one on going

through the mass of materials dealing with the formation and

adoption of the constitution is the nearly universal agreement

that the federal government should be given the power of

regulating commerce.”).

15 Madison, supra note 10, at 242.

16 Of course, the inverse is not thereby true. It is not true that

just because the Antifederalists were concerned about the

Necessary and Proper Clause, therefore the clause was in fact a

14

11

As the Federalists’ assurances demonstrate, the

purpose of the federal government was national unity,

not national uniformity. “The powers delegated by the

proposed constitution to the federal government are

few and defined. Those which are to remain in the

state

governments

are

numerous

and

indefinite.”17 The Founding generation understood

that the powers delegated to the federal government

“w[ould] be exercised principally on external objects,

as war, peace, negotiation, and foreign commerce;

with which last the power of taxation will for the most

part be connected.”18 The federal government does not

have a general police power. It cannot “regulate

marriage, littering, or cruelty to animals, throughout

the 50 states . . . Any interpretation of the Commerce

Clause that even suggests that Congress could

regulate such matters is in need of reexamination.”

Lopez, 514 U.S. at 585 (Thomas, J., concurring).

On the other hand, “The powers reserved to the

several states [were to] extend to all the objects,

which, in the ordinary course of affairs, concern the

lives, liberties and properties of the people; and the

internal order, improvement and prosperity of the

state.”19 Or, as Hamilton explained, “The

administration of private justice between the citizens

general grant of authority. As will be discussed below, the

Federalists were right to give their assurances that the

Necessary and Proper Clause itself was not a source of unbridled

federal authority, and those assurances formed the original

meaning on which the Constitution’s ratifiers relied.

17 Madison, supra note 10, at 241.

18 Id.

19 Id.

12

of the same State, the supervision of agriculture and

of other concerns of a similar nature, all those things

in short which are proper to be provided for by local

legislation, can never be desirable cares of a general

jurisdiction.”20

This distinction between wholly intrastate activity

and activity that crossed state lines was crucial. As

Noah Webster said a month after the end of the

constitutional convention, Congress cannot “interfere

in any affair which respects one state only. This is the

general line of division, which the Convention

endeavored to draw, between the powers of Congress

and the rights of the states.”21

A few months later, David Ramsay of South

Carolina

wrote

that

“all

the

powers

of

Congress . . . shew that they all may be referred to this

single principle, ‘that the general concerns of the

Union ought to be managed by the general

government.’”22 Internal regulation, these supporters

of the Constitution promised, would remain the

province of state legislation.

This understanding of the federal government as

concerned with national—not local—issues is also

evident in the way those of the Founding generation

discussed commerce as related to productive

industries. Speakers and writers at the time of

drafting and ratification frequently used “the term

‘commerce’ . . . in contradistinction to . . . productive

20 The Federalist No. 17 at 80-81 (Alexander Hamilton) (George

W. Carey and James McClellan, eds., The Liberty Fund 2001).

21 1 Debates on the Constitution 145 (Bernard Bailyn ed., 1993).

22 2 id. at 148.

13

activities,” such as agriculture and manufacturing.

Lopez, 514 U.S. at 586 (Thomas, J., concurring).

Arguing that the power to regulate navigation was

encompassed in the power to regulate commerce,

Professor Barnett quotes ratification debaters

distinguishing between “commerce and navigation” on

the one hand and “‘various branches of business

thereon dependent’ as well as specifically from

agriculture,” on the other.23 In light of the

Constitution’s purpose, this distinction between

agriculture and manufacturing—activities that take

place within a state—and commerce or trade—an

activity that may cross state lines—makes perfect

sense. Those who voted to ratify the Constitution in

the states thus did not understand the Constitution to

cede regulatory power over local activities to the

federal government.

That is why, for federal district court Judge John

Davis, a member of Massachusetts’s ratifying

convention, it was inconceivable that Congress had

the power to regulate the growing of corn. “It would

not be admitted, I presume, that an act, so

extravagant, would be constitutional . . . And why?

Because it would be, most manifestly, without the

limits of the federal jurisdiction, and relative to an

object, or concern, not committed to its management.”

United States v. The William, 28 F. Cas. 614, 622

(1808) (emphasis added).

23 Barnett, supra note 6 at 126 (quoting Jonathan Elliot, ed, 2 The

Debates in the Several State Conventions on the Adoption of the

Constitution at 170, 83 (Taylor & Maury 2d ed. 1863)).

14

Had those considering the ratification of the

Constitution believed that the Commerce Clause

conferred “so extravagant” a power upon the federal

government as was upheld in Wickard and its

progeny, Antifederalists like Mason would have

objected more strenuously and the Constitution would

almost assuredly not have been ratified.

The expansive reading of the Commerce Clause not

only violates the expectations of the ratifying public;

it also undermines the guarantee of the Tenth

Amendment. The Tenth Amendment was a

reaffirmation, not a novel proclamation, that “[t]he

powers not delegated to the United States by the

Constitution, nor prohibited by it to the states, are

reserved to the states respectively, or to the people.”

U.S. Const. amend. X. The Court’s broad

interpretation of the Commerce Clause, however,

turns the Tenth Amendment “on its head.” Lopez, 514

U.S. at 589 (Thomas, J., concurring). The Court’s “case

law could be read to reserve to the United States all

powers not expressly prohibited by the Constitution.”

Id.

Textual context, too, demands a textualist reading

of the Commerce Clause. An expansive interpretation

of the clause gives Congress powers it does not have.

Simultaneously, it renders redundant many of those

powers the Constitution actually does vest in

Congress. As Justice Thomas explains, “much if not all

of Art. I, § 8 (including portions of the Commerce

Clause itself), would have been surplusage if Congress

had been given authority over matters that

substantially affect interstate commerce.” Lopez, 514

U.S. at 589 (Thomas, J., concurring).

15

As the Court has long recognized, “It cannot be

presumed that any clause in the constitution is

intended to be without effect; and therefore such a

construction is inadmissible, unless the words require

it.” Marbury v. Madison, 5 U.S. (1 Cranch) 137,174

(1803). The words of the Commerce Clause certainly

do not require that it be read in a manner that would

render meaningless large swaths of constitutional

language.

Were the Commerce Clause a grant of power to

regulate all things which substantially affect

commerce:

[T]here [would be] no need for the

Constitution to specify that Congress

may enact bankruptcy laws, cl. 4, or coin

money and fix the standard of weights

and measures, cl. 5, or punish

counterfeiters of United States coin and

securities, cl. 6. Likewise, Congress

would not need the separate authority to

establish post offices and post roads, cl.

7, or to grant patents and copyrights, cl.

8, or to “punish Piracies and Felonies

committed on the high Seas,” cl. 10. It

might not even need the power to raise

and support an Army and Navy, cls. 12

and 13, for fewer people would engage in

commercial shipping if they thought that

a foreign power could expropriate their

property with ease. Indeed, if Congress

could regulate matters that substantially

affect interstate commerce, there would

have been no need to specify that

16

Congress can regulate international

trade and commerce with the Indians. As

the Framers surely understood, these

other branches of trade substantially

affect interstate commerce.

Lopez, 514 U.S. at 588-89 (Thomas, J., concurring).

Such an interpretation “simply cannot be correct.” Id.

at 589. Surely all of this constitutional language is not

swallowed up by one clause which, again, received

very little attention at the time of the founding even

from the Constitution’s critics.

Because a broad interpretation of the Commerce

Clause would directly conflict with the ratifying

public’s understanding of the federal government’s

purpose, such an interpretation is not plausible. That

broad interpretation—be it that the Commerce Clause

grants Congress the power to regulate all of what

today is considered commercial activity, or that it

grants Congress the power to regulate those things

that have a substantial effect on commercial activity—

is inconsistent with the evidence of the text’s original

meaning, is contrary to the general purpose of the

national government as understood by those who

drafted and ratified the Constitution, and would

render much of Article I Section 8 of the Constitution

a redundant waste of ink and parchment. The

Commerce Clause grants Congress exactly the power

it says it does: the power to regulate commerce among

the several states. It is not a Trojan horse that once

ratified would beget an unseen and unanticipated

army of federal powers.

17

II.

The

Ban

on

Home

Distilling

is

Unconstitutional Because it Depends on a

Principle That Would Allow the Federal

Government Overbroad Regulatory Power

Under the Taxing and Commerce Clauses and

Thus Undermine the Constitutional Bargain

Between the People, the States, and the Federal

Government.

The Constitution also grants Congress the power

to “make all Laws which shall be necessary and proper

for carrying into Execution the foregoing Powers.”

U.S. Const. art. I, § 8, cl. 18. The Sixth Circuit found

that the home-distilling ban is a necessary and proper

execution of Congress’s taxing power. The government

below argued that it is both a necessary and proper

exercise of Congress’s power under the Taxing and

Commerce Clauses. It is not.

The scope of the powers vested in Congress by the

Necessary and Proper Clause is limited by “the word

‘proper’ [which] in this context requires executory laws

to be distinctively and peculiarly within the

jurisdictional

competence

of

the

national

government—that is, consistent with the background

principles of separation of powers, federalism, and

individual rights.”24

Chief Justice John Marshall famously explained

the Necessary and Proper Clause in McCulloch v.

Maryland, writing, “Let the end be legitimate, let it be

within the scope of the constitution, and all means

which are appropriate, which are plainly adapted to

24 Gary S. Lawson, The Rise and Rise of the Administrative State,

107 Harv. L. Rev. 1231, 1234-35 (1994) (emphasis added).

18

that end, which are not prohibited, but consist with

the letter and spirit of the constitution, are

constitutional.” 17 U.S. 316, 421 (1819). Properly

understood, McCulloch establishes two requirements

for a law to be necessary and proper:

First, the law must be directed toward a

“legitimate” end, which McCulloch

defines as one “within the scope of the

[C]onstitution”—that is, the powers

expressly delegated to the Federal

Government by some provision in the

Constitution . . . Second, there must be a

necessary and proper fit between the

“means” (the federal law) and the “end”

(the enumerated power or powers) it is

designed to serve . . . The means

Congress selects will be deemed

“necessary” if they are “appropriate” and

“plainly adapted” to the exercise of an

enumerated power, and “proper” if they

are not otherwise “prohibited” by the

Constitution and not “[in]consistent”

with its “letter and spirit.”

United States v. Comstock, 560 U.S. 126, 160-61

(2010) (Thomas, J., dissenting) (alteration in original)

(quoting McCulloch, 17 U.S. at 421). Thus, an act of

Congress is not “proper” if it is “otherwise ‘prohibited

by the Constitution’” or is “‘[in]consistent’ with its

‘letter and spirit.’” Id.

The home-distilling ban is not a proper means of

exercising Congress’s taxing power, both because it

depends on an expansion of Congress’s substantive

19

power beyond those enumerated and because it

violates the principles of federalism.

The home-distilling ban is not a “proper” means of

exercising Congress’s Taxing or Commerce powers

because it is a substantive expansion of congressional

power beyond those enumerated. The federal

“government is acknowledged by all, to be one of

enumerated powers.” McCulloch v. Maryland, 17 U.S.

316, 405 (1819). An “enumeration of powers is also a

limitation of powers, because ‘[t]he enumeration

presupposes something not enumerated.’” Nat’l Fed’n

of Indep. Bus. v. Sebelius, 567 U.S. 519, 534 (2012)

(alteration in original) (quoting Gibbons v. Ogden, 22

U.S. 1, 9 (1824)).

Despite the strict language of the Necessary and

Proper Clause, Antifederalists were concerned that it

vested in Congress vast powers. Whether the proposed

Constitution vested too much power in the federal

government was a central question for the ratifying

generation.

Responding to Antifederalists’ concerns that the

Clause granted Congress expansive powers, Hamilton

assured the public:

[I]t may be affirmed with perfect confidence,

that the constitutional operation of the

intended government would be precisely the

same, if the [Necessary and Proper Clause and

the Supremacy Clause] were entirely

obliterated, as if they were repeated in every

article. They are only declaratory of a truth,

which would have resulted by the necessary

and unavoidable implication from the very act

20

of constituting a Federal Government, and

vesting it with certain specified powers.25

Hamilton continues, “What is a power but the

faculty of doing a thing? What is the ability to do a

thing but the power of employing the means necessary

to its execution? What is a LEGISLATIVE power but

a power of making LAWS?”26

As Chief Justice Marshall explained in McCulloch,

echoing Hamilton, the Necessary and Proper Clause

does not confer upon Congress any “great substantive

and independent power.” 17 U.S. at 411. The power to

prohibit purely local, noneconomic activity is just such

a “great substantive and independent power,” not

delegated in the Constitution to Congress but

necessary to uphold the home-distilling ban. On these

grounds alone, then, the home-distilling ban is not a

proper exercise of either Congress’s taxing or

commerce power.

The Constitution’s enumeration of limited powers

protected the liberty of the people in two ways; first as

a limit on federal power per se, and second as a

protection of state authority over local regulation.

When the ratifying conventions adopted the

Constitution, they did so expecting that they were

adopting a system of government that established

these overlapping objectives.

As shown above, the home-distilling ban exceeds

the authority granted to Congress in its enumerated

powers because it depends on a substantive and

25 Hamilton, supra note 5, at 158 (emphasis added).

26 Id. at 159 (emphasis in original).

21

independent power not vested in Congress by the

Constitution. Relatedly, the home-distilling ban

usurps power the Framers assured the public would

be reserved to the states.

Granting Congress the power to regulate such

wholly local—in fact domestic—noneconomic activity

as distillation in one’s own home would upend the

balance between the federal and state governments by

transferring massive power to the federal government

contrary both to the bargain struck by the ratifying

generation and the explicit language of the Tenth

Amendment.

The Tenth Amendment pledges that “[t]he powers

not delegated to the United States by the Constitution,

nor prohibited by it to the states, are reserved to the

states respectively, or to the people.” U.S. Const.

amend. X. That amendment grew out of preratification debate about the relationship between the

federal and state governments. Antifederalists

expressed concern that the proposed federal

government would swallow up the powers of the

states. But proponents of the Constitution repeatedly

assured the public that the federal government would

concern itself with national, not local, issues, leaving

regulation of local activity to the states.27

These statements, further, are not mere commentary. “The

Federalists clearly intended these lists to induce public reliance.

They were published and republished. They also evince a certain

amount of coordination, for when the enumerations [of powers

reserved to the States] overlapped they remained remarkably

consistent.” Robert G. Natelson, The Founders Interpret the

Constitution: The Division of Federal and State Power, 19 Fed.

27

22

Alexander Hamilton, who after the adoption of the

Constitution clashed with Madison and others when

he advocated for an expanded view of federal power,

wrote in Federalist No. 17 as an advocate for the

Constitution’s adoption, “The administration of

private justice between the citizens of the same State,

the supervision of agriculture and of other concerns of

a similar nature, all those things, in short, which are

proper to be provided for by local legislation, can never

be desirable cares of a general jurisdiction.”28

James Madison wrote that the power of the federal

government would, “be exercised principally on

external objects, as war, peace, negotiation, and

Soc. Rev. 60, 60 (2018). See also, Robert Natelson, More News on

Powers Reserved Exclusively to the States, 20 Fed. Soc. Rev. 92,

92 n. 4 (2019) (“As today, representations of meaning by a

measure’s sponsors carried far more weight than allegations by

opponents. Such representations bound the sponsors later.”).

Maxims of construction prohibited a “bait and switch” of offering

one interpretation to get a measure passed or ratified and

another interpretation after its adoption. See id. While the

subjective intentions of the Framers, whether individually or as

a whole, are not legally binding, the public statements that were

intended to induce reliance on the part of the ratifiers should be

given weight in determining the original public meaning of the

Constitution. Original meaning is “[t]he understanding of a text,

esp. an important text such as the Constitution, reflecting what

an informed, reasonable member of the community would have

understood at the time of adoption according to then-prevailing

linguistic meanings and interpretive principles.” Antonin Scalia

and Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts 435 (Thomson/West 2012). An informed, reasonable ratifier

would have read the proposed Constitution in light of the

explanations provided by proponents.

28 The Federalist No. 17 at 80-81 (Alexander Hamilton) (George

W. Carey and James McClellan, eds., The Liberty Fund 2001).

23

foreign commerce,” while, “[t]he powers reserved to

the several states [would] extend to all the objects,

which, in the ordinary course of affairs, concern the

lives, liberties and properties of the people; and the

internal order, improvement and prosperity of the

state.”29

Madison assured the public that “the most

convincing evidence” showed “that the powers

proposed to be lodged in the federal government are as

little formidable to those reserved to the individual

States, as they are indispensably necessary to

accomplish the purposes of the Union.”30 At the

Virginia ratifying convention, “he identified as outside

the sphere . . . anything that would ‘subvert the whole

system of state laws.’”31

“At the North Carolina ratifying convention and in

other venues,” James Iredell, who would later become

a Justice of this Court, “emphasized that all authority

not granted to the federal government was reserved

exclusively to the states and the people.”32 This

included the “punishment of crimes other than

treason, offenses against the law of nations, or felonies

on the high seas.”33

29 Madison, supra note 10.

The Federalist No. 46 at 248 (James Madison) (George W.

Carey and James McClellan, eds., The Liberty Fund 2001).

31 Natelson, The Founders Interpret the Constitution, supra note

27 at 61 (quoting The Debates in the Several State Conventions

on the Adoption of the Federal Constitution [hereinafter “Elliot’s

Debates”] 620 (Johnathan Elliot ed.,2d ed. 1901)).

32 Id. at 63.

33 Id. (quoting Elliot’s Debates at 219). And there are many more

30

24

This bargain was made explicit with the adoption

of the Tenth Amendment.

When the Federal Government exercises the

“powers delegated to the United States by the

Constitution,” U.S. Const. amend. X, the resulting law

supersedes and displaces state law where the two

conflict. U.S. Const. art. VI, cl. 2; McCulloch, 17 U.S.

at 316 (“The government of the Union, though limited

in its powers, is supreme within its sphere of action,

and its laws, when made in pursuance of the

constitution, form the supreme law of the land.”).

Thus, if the taxing or commerce powers include the

power to ban home distilling and any other purely

local, yet federally taxed, activity, then the Necessary

and Proper Clause includes the authority to displace

state regulation of all such activities.34 The result

would be that a great mass of regulatory power is held

in reserve by the states only until the federal

government decides to tax and regulate that activity.

such statements. See generally id.; Natelson, More News on

Powers Reserved Exclusively to the States, supra note 27; Robert

G. Natelson, The Enumerated Powers of the States 3 Nev. L. J.

469 (2002-2003).

34 The implications of the Government’s proposed principle here

are unbelievable. The Government’s theory, for example, would

presumably mean that Congress could levy a tax on all

production of food for human consumption and then ban at home

food production, forcing Americans to eat at restaurants where

the Federal Government could ensure that the excise tax on

cooking was paid. The point, of course, is not that Congress would

ever pass such a law; the point is that any theory of constitutional

application that entails such vast federal power over the

minutiae of local daily life would undermine what all involved

believed they were agreeing to in proposing and ratifying the

Constitution of the United States.

25

The home-distilling ban thus rests on a principle

that would make the powers of the Federal

Government incredibly “formidable to those reserved

to the individual States,”35 in contravention of the

constitutional bargain to which the states and the

people agreed.

If the ratifying public had understood the

Constitution as vesting in Congress massive

regulatory power touching even local and private

activity, the Constitution would almost assuredly not

have been ratified. The home-distilling ban is thus

both prohibited by the Constitution and inconsistent

with its letter and spirit. For these reasons, it cannot

be a proper exercise of Congress’s power under either

the Taxing or Commerce Clause.

Because the home-distilling ban is not supported

by Congress’s enumerated powers or the Necessary

and Proper Clause, the Court should grant certiorari

and hold that the home-distilling ban is

unconstitutional.

35 Madison, supra note 30.

26

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for certiorari and rule for Petitioners.

Respectfully submitted,

J. Marc Wheat

Counsel of Record

Timothy Harper (Admitted in D.C.)

Advancing American Freedom, Inc.

801 Pennsylvania Avenue, N.W. Suite 930

Washington, D.C. 20004

(202) 780-4848

mwheat@advancingamericanfreedom.com

Reilly Stephens

Liberty Justice Center

1629 K Street N.W.

Suite 300

Washington, D.C. 20006

512-481-4400

rstephens@ljc.org

Counsel for Amici Curiae