david neiwert has a post about a congressional bill to strip citizenship from children of illegal aliens. as david notes, the big problem to this bill is that section 1 of the fourteenth amendment pretty clearly states that congress has no power to do this when it says: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
proponents of the bill argue that the 14th amendment provision was just intended to apply to freed slaves. but with all due respect to congressman gary miller, it doesn't matter what he thinks. long ago the supreme court ruled otherwise. (see U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)).
there is a theory of constitutional law that would give congress some role in interpreting the fourteenth amendment. because section 5 of the amendment gives congress the "to enforce, by appropriate legislation, the provisions" of the amendment, some have argued that congress is authorized, as part of its enforcement powers, reinterpret the substantive portions of the fourteenth amendment as well. this was generally called the "one-way ratchet" theory championed by justice brennan in Katzenbach v. Morgan, 384 U.S. 641, 653-56 (1966). brennan's ratchet, however, only went one way. he believed that congress had the ability to expand the individual rights guaranteed by the 14th amendment beyond what the supreme court said the amendment itself required. but congress' interpretation could not reduce the scope of the amendment below the rights established by the court's interpretation. in other words congress' ability to interpret the amendment did not allow them to interpret-away the constitutionally required minimums.
brennan's ratchet theory was never adopted by a majority of the supreme court, and it doesn't stand much of a chance of being adopted by the current court. but even if it had, it would not save congressman miller's bill. because his bill takes away rights to citizenship, it ratchets the wrong way. the miller bill would not stand a chance under any justice's interpretation of the 14th amendment. but that doesn't mean it's not fun to get all excited about it.
(neiwert link via the liberal avenger)
