You could bet your egg money on this proposition — that the case of Jenkins v. Commissioner will never get to oral argument in the Supreme Court. Together with hundreds of other pending petitions, the case is doomed to instant dismissal when the Court gets back to work in the fall. Even so, every lost cause deserves a parting wave, and this cause is more lost than most.
The Jenkins in the case is Daniel Taylor Jenkins of Saranac Lake, N.Y. He is 54 years old, a hydro-geologist by profession, a practicing member of the Religious Society of Friends. The commissioner in the case is Mark W. Everson, chief of the U.S. Internal Revenue Service.
Mr. Jenkins, a conscientious objector, is not a scofflaw. He is agreeable to paying his federal income taxes in full — indeed, he has put in escrow a sum sufficient for that purpose — but only if his dollars are not spent on waging war. The commissioner and two lower courts have told him that the system does not work that way. So far he owes a $5,000 penalty. Hundreds of such tax collection cases are pending.
This is what distinguishes the Jenkins case: In his appeal to the high court, Mr. Jenkins relies in large part upon his rights under the Ninth Amendment to the Constitution. What rights are these? Well you may ask. As a substantive part of our fundamental law, the forgotten Ninth Amendment is even more irrelevant than the emasculated 10th and the long-abandoned Third. The Ninth Amendment reads:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Every schoolboy knows the enumerated rights: free speech, free press, jury trial and so on. What are these "other" undefined rights that the people have retained for all these years? They must exist. And if it is reasonably clear that these other rights cannot be "denied," what is one to make of the rule that neither may they be "disparaged"? Into these semantic swamps the plaintiff Jenkins would propel us.
Moving on! Counsel for Mr. Jenkins argues valiantly that one of these other rights is a Ninth Amendment right of conscientious objection to the use of arms. That right, it is urged, has existed since the very beginning of the Republic. It finds support today in RFRA, the Religious Freedom Restoration Act of 1993. Without unduly undermining the national defense, the right could be granted to practicing Quakers.
In his pitch to the high court, petitioner Jenkins cites to the Supreme Court case of Ed Lee in 1982. It’s hard to see how it helps him much. Lee was a Pennsylvania farmer, a member of the Old Order Amish. As an article of his faith, he paid no Social Security taxes on himself or his 30 employees. For their part, they imposed no burden on the taxpayers — at least until Pennsylvania is invaded by some alien horde.
Farmer Lee’s faith-based obstinacy earned him a kindly nod from Chief Justice Warren Earl Burger and a unanimous court, but it did him no good as a matter of law. His pacifist argument failed absolutely. In the 25 years since the Lee case, federal courts in at least four circuits have reaffirmed the rule that conscientious objectors must pay taxes like everybody else.
Writing in March for a unanimous panel of the Second Circuit, Judge Jose Cabranes refused to cut Daniel Jenkins any slack at all: The panel granted him the sincerity of his religious convictions, but it found his arguments under RFRA "without merit." Similarly, the Ninth Amendment was no help to him. The Ninth is not an independent source of individual rights. It is no more than "a ‘rule of construction’ that we apply in certain cases."
Granted, said Judge Cabranes, there was a time when conscientious objectors could be accommodated in their objection to supporting military service. For example, a New York law of 1814 provided that money received from Quakers could not be used to support the state militia. It would be used instead for educational and charitable purposes.
That time was long ago and far away. Today no citizen has a right to negotiate alternative taxes by proclaiming his genuinely held religious objections to military service. The rule applies, said Judge Cabranes, "no matter how sincerely those convictions may be held."
All that remains to be said to Daniel Jenkins’ counsel is, "Nice try!" The Ninth Amendment may not be dead — but it surely looks that way.