Here’s a skeptical question about the upcoming case on whether Congress can make home distillation of whiskey a crime. Why should we think that a law that has been on the books since 1868 exceeds Congress’s enumerated power? That power is read much more broadly now than it was then. I’m open to persuasion that, for example, there was little or no enforcement of this law. Or that there was some odd discussion of the statute in Congress. Or maybe some notable people like Bingham voted against it–I’ll check that.
Now do I think that this should be a federal crime? No I don’t. But that’s a different issue.