Just Brew It: A Brief Legislative History about Homebrewing in the United States – Part 1

The following is the first of two guest posts by Rebecca Komathy, a former intern with the Digital Resources Division of the Law Library of Congress. She is currently a graduate student in the master of library and information science program at San Jose State University. The second blog post on this topic will be published on February 3, 2023.

Early in the COVID-19 pandemic, crafting, baking, and other more cathartic hobbies became popular in the homes of Americans waiting out stay-at-home orders. The emergence of these hobbies was more than skin-deep, as it allowed residents of the United States to try or revisit neglected, overlooked, and other time-consuming hobbies. One of the most popular hobbies that emerged was homebrewing. Homebrewing is the act of brewing beer and other fermented beverages in small batches for personal purposes and consumption. In 2020, homebrewing kits sales were up by 50% as Americans were finding ways to make isolation less boring. The homebrewing culture was reinvigorated as citizens experimented with alcohol content, flavors, and batch sizes as an alternative to mass-produced products. This two-part blog discusses legislative progress on this topic since the prohibition era.

Homebrewing’s roots can be traced back to ancient civilizations that were developing and tasting recipes for ales and wine. As early as 7,000 BCE, homebrewing was a normal part of household tasks often assigned to women. In American history, the manufacturing and selling of alcoholic beverages were federally legal until the prohibition era (1920-1933). It was not until 1978, when President Jimmy Carter signed H.R. 1337, an act authorizing the home production of beer and wine without federal taxation, that homebrewing became legally permissible. This act was a milestone in the progress of alcohol production since prohibition, and showcased the changing perspectives toward regulating alcohol by allowing citizens the freedom to brew their own.

Overview of Past Attitudes and Regulations Toward Alcohol

U.S. regulation of alcohol can be traced back to the 1800s, when religious groups tried to combat alcoholic consumption to prevent behavior often tied to criminal acts. The picture painted was of the consumer in a state of drunkenness, a sin often associated with a manifestation of gluttony, immorality, and even death. Ultimately, these manifestations were seen as offshoots of personal liberty, explained in the essay The Relationship of Alcohol to Society and Citizenship (p. 1) as “the right to do anything that one has the power or inclination to do, regardless of the consequences to one’s self or to others.”  The author goes on to relate personal liberty to the idea of the self-indulgent man. The author states (pp. 1-2):

[S]elf indulgent men who really have less personal liberty than they who are physically free because they are healthy, because they are not bound in shackles of some indulgence and can dig up out of their inner resources and also find in their environment a thousand and one means of satisfying existence, instead of seeking escape from life strain by dulling the mind with a narcotic.

Researchers conducted scientific studies to observe and further understand the physical effects of alcohol on the body. In addition, religious groups advocating against the use of alcohol, such as those members of the temperance movement, began gaining momentum and dedicated followers across the nation. The first temperance movement organization began in 1808, but quickly expanded to 24 organizations by 1824. The temperance movement was made up of primarily women who encouraged drinking in moderation, eventually leading to teetotalism or the act of abstaining from drinking. One famous member of the temperance movement was Carrie Nation, a member often remembered for her anti-alcohol public demonstrations of destroying bars with a hatchet. During World War I, prohibitionists and the Anti-Saloon League used anti-German propaganda to their advantage to promote their discouragement of consuming, selling, and transporting beer from breweries. This tactic was used because of the association of beer productions owned and operated by Germans.

In addition, rations on grain supplies created a temporary prohibition that restricted grains from going to breweries as beer was seen as a frivolous commodity that took grain away from the soldiers’ stomachs abroad. The momentum of temperance activism eventually led to the foundation of the prohibition movement, a moral and religious-based ideology of outlawing all alcoholic drinks to create reform in American society. This reform was named a “noble experiment” by President Hoover and it was eventually enshrined in the U.S. Constitution as the 18th Amendment.

The 18th and 21st Amendments

The prohibition era (1920-1933) was born out of the temperance movement and was ratified into the 18th Amendment, also known as the prohibition amendment or the dry amendment. After World War I, newspapers discussed the ratification of the amendment and its overwhelming approval amongst the states. Once ratified, the 18th Amendment prohibited the “manufacture, sale, or transportation of intoxicating liquors,” which seemed to satisfy the temperance activists, but in turn created an opposing community, referred to as the Wets, committed to keeping the drink. In addition, the 18th Amendment did not mention consumption, so those who had liquor stored before the amendment’s passage were allowed to keep their drinks for personal consumption. Prohibition was enforced by the Volstead Act (ch. 85, 41 Stat. 305) adopted in 1919, as a means of prohibiting the manufacturing and sale of liquors at the state level while also further defining the process of the alcohol ban, including production and distribution. Although it was originally vetoed by President Woodrow Wilson, the House and Senate overrode the veto in October 1919.

Prohibition laws were regulated by the Bureau of Prohibition, an FBI unit created to stop the manufacturing, distribution, and transportation of alcohol. Agents would raid businesses, homes, and spaces suspected of selling or distributing alcohol and would oftentimes dump the wine, beer, or spirits right onto the street. The enforcement of prohibition was supported by the Anti-Saloon League, which claimed that the restrictions were improving society:

Since the enactment of National Prohibition, the total number of arrests for all offenses has fallen off about 40 per cent. This included arrests for drunkenness, fighting, stabbing, shooting, embezzlement, contributing to the delinquency of children, wife and child abandonment, and other kindred offenses.

On the other hand, there were tensions between prohibition agents and local law enforcement agencies. Oftentimes prohibition agents were scrutinized for participating in bootlegging and for contributing to organized crime. In the end, anyone who was caught selling, making, or transporting alcohol was either incarcerated or subject to large fines. After the prohibition era ended, the Bureau of Prohibition was absorbed and reorganized as the present-day Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

The 21st Amendment was ratified on December 5, 1933, and its passing nullified the 18th Amendment. Some of the reasons for the 21st Amendment’s ratification were lost support of the public, an increase in violent organized crime, increased drinking, and revenue shortfalls due to alcohol tax cuts. Its ratification legalized the production of alcohol and allowed states the right to license and regulate brewing as listed in section 2 of the amendment:

The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

New York governor Franklin Roosevelt supported the 21st Amendment during his pro-repeal plank while campaigning to become president, when he asserted, “…it must remain not only the right but the duty of the Federal Government to protect States which continue to prohibit the sale of intoxicants.” This would lead to the distinction of whether one was a dry state (states that continued to implement prohibition laws) or a wet state (those that legalized liquor sales and consumption). Some dry states implemented prohibition laws well into the 1960s, with Mississippi completely repealing all prohibition laws in every county in 2021.

Although the 21st Amendment allows states to regulate liquor laws, the amendment’s wording does not specify the legality of making beer at home. It was not until Jimmy Carter’s presidency that the omission was addressed in federal legislation. We will discuss that legislation in the next installment on this topic!