Since 1868, the United States has had a federal statute that prohibits the installation of a “distilled spirits plant,” (i.e., a “still”) “in any dwelling house, [and] in any shed, yard, or inclosure (sic) connected with any dwelling house . . . .” See 26 U.S.C. § 5178(a)(1)(B). This is a part of the federal tax code and was enacted by Congress to prevent the evasion of the much older federal tax on whiskey and other distilled spirits. Since the late 1700’s, the federal government has taxed the owners of commercial distilleries based on the alcoholic “proof” of the beverages they produced, as measured by federal revenue inspectors during distillery operations at all times a day, whether day or night. See generally 26 U.S.C. § 5178 and the government’s petition for a Supreme Court hearing. The Supreme Court of the United States has now put the alleged unconstitutionality of this statute on its docket during the current term of the Court. See Dept. of Justice v. McNutt, U.S.Sup.Ct docket number 26-204.
Mr. McNutt, a modern-day distilling hobbyist, claims the statute forbidding home distilling violates the limited powers provisions of Article I, Section 8 of the Constitution, particularly including the catch-all “Necessary and Proper Clause” that concludes that list of Congress’ limited powers. That Clause reads as follows:
The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [including the power to tax] . . . .
U.S. Const., Art. I, § 8, last clause.
In the early years of our republic, the Supreme Court interpreted that Clause as saying the following:
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 that end, which are not prohibited, but consist (sic) with the letter and spirit of the constitution, are constitutional.
Culloch v. Maryland, 17 U.S. 316, 412 (1819)
The outright prohibition of “stills” on any residential real estate was, and is a “means” for actually collecting taxes that are due for the commercial distillation of alcoholic beverages. The statute in question, 26 U.S.C. § 5178(a)(1)(B), prohibits the evasion of the whiskey tax by simply prohibiting the production of whiskey in the privacy of one’s own home. The constitutional problem with that prohibition, even today, is the fact that the prohibition is itself “prohibited” by the Tenth Amendment to the Constitution. That Amendment reads as follows:
The 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., Tenth Amendment
The prohibition of “stills” on residential real estate is not within any of the limited “powers” specifically granted or delegated to Congress by Article I, Section 8 of Constitution. The Constitution does not prohibit the states from enacting such land use prohibitions. Therefore, the power to legislate that kind of restriction of land use is “reserved to the States respectively” by the Tenth Amendment.
26 U.S.C. § 5178(a)(1)(B) is repugnant to the Constitution. Regardless of what one thinks of alcoholic beverages, the Court should declare this particular part of the federal tax code unconstitutional and void.
/s/ Dan D. Rhea
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