Conservative Iowa Radio Host Jan Mickelson Wrongly Claims The 14^th Amendment Doesn't Grant Birthright Citizenship To U.S.-Born Children Of Undocumented Immigrants

Mickelson Misinterpreted Comment About Children Of Foreign Diplomats To Claim Post-Civil War Congress Didn't Intend Birthright Citizenship To All. On his August 26 show, Iowa radio host Jan Mickelson claimed that in 1866, Sen. Jacob Howard, the U.S. senator who drafted the 14^th Amendment to the Constitution, “denied during the debate any future application of the birthright citizenship clause to the children of foreigners or aliens.” After playing part of an interview between Fox News host Megyn Kelly and New Jersey Gov. Chris Christie (R), Mickelson said Kelly's interpretation of the 14^th Amendment -- widely shared by both legal experts and historians -- was only partially correct:

KELLY: The 14^th Amendment, so people know, says if you're born here, you're a citizen here.

[end audio clip]

MICKELSON: Well, it doesn't say that. Well, it says that in part. But it says also, “under the jurisdiction thereof.” And here is, in the very debate that Jacob Howard was having-- discussing why they adopted and proposed the 14^th Amendment in the first place is to make citizens of former slaves. And he considered it law already under natural law, national law. And after he said all that, everything that Megyn Kelly just said, then he says further, “This will not, of course, include persons born in the United States who are foreigners or aliens.” That means under the jurisdiction of another country. So the guy who wrote it, Senator Jacob Howard, denied during the debate, any future application of the birthright citizenship clause to the children of foreigners or aliens. With the clause, “under the jurisdiction thereof.” [Mickelson in the Morning, 8/26/15]

Legal Experts Have Long Dismissed Mickelson's Reading Of 14^th Amendment

Former Texas Solicitor General James C. Ho: “Text, History, Judicial Precedent, And Executive Branch Interpretation Confirm” Birthright Citizenship “Reaches Most U.S.-Born Children Of Aliens.” According to James C. Ho, a former Texas solicitor general and ex-chief counsel of the U.S. Senate Judiciary Subcommittee on the Constitution and Immigration under Sen. John Cornyn (R-TX), arguments against birthright citizenship that echo Mickelson's claim are incorrect because the “text, history, judicial precedent, and Executive Branch interpretation” of the 14^th Amendment confirms birthright citizenship (emphasis added):

The Fourteenth Amendment begins: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Repeal proponents contend that this language does not apply to the children of aliens - whether legal or illegal (with the possible exception of lawful permanent residents) - because such persons are not “subject to [U.S.] jurisdiction.” But text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most U.S. born children of aliens, including illegal aliens.

[...]

To be “subject to the jurisdiction” of the U.S. is simply to be subject to the authority of the U.S. government. The phrase thus covers the vast majority of persons within our borders who are required to obey U.S. laws. And obedience, of course, does not turn on immigration status, national allegiance, or past compliance. All must obey.

Common usage confirms this understanding. When we speak of a business that is subject to the jurisdiction of a regulatory agency, it must follow the laws of that agency, whether it likes it or not. When we speak of an individual who is subject to the jurisdiction of a court, he must follow the judgments and orders of that court, whether he likes it or not. As Justice Scalia noted just a year ago, when a statute renders a particular class of persons “subject to the jurisdiction of the United States,” Congress “has made clear its intent to extend its laws” to them.

[...]

Accordingly, the text of the Citizenship Clause plainly guarantees birthright citizenship to the U.S.-born children of all persons subject to U.S. sovereign authority and laws. The clause thus covers the vast majority of lawful and unlawful aliens. Of course, the jurisdictional requirement of the Citizenship Clause must do something - and it does. It excludes those persons who, for some reason, are immune from, and thus not required to obey, U.S. law. Most notably, foreign diplomats and enemy soldiers - as agents of a foreign sovereign - are not subject to U.S. law, notwithstanding their presence within U.S. territory. Foreign diplomats enjoy diplomatic immunity, while lawful enemy combatants enjoy combatant immunity. Accordingly, children born to them are not entitled to birthright citizenship under the Fourteenth Amendment. [The Green Bag, Summer 2006, Volume 9, Number 4, via the Immigration Policy Center, September 2009]

Constitutional Accountability Center's Elizabeth Wydra: Sen. Howard's “Foreigners” Comment “Does Not Prove The Anti-Citizenship Advocates' Claim” That Birthright Citizenship Doesn't Extend To Immigrants. According to an issue brief by Elizabeth Wydra, chief counsel at the Constitutional Accountability Center, “an oft-repeated claim” that Sen. Jacob Howard did not intend to extend birthright citizenship to the children of foreigners “was merely a summary of the widely accepted understanding that children of diplomats would not be birthright citizens” (emphasis added):

An oft-repeated claim by opponents of birthright citizenship is that the Citizenship Clause was intended to exclude “foreigners” from its guarantee of automatic citizenship. In support of this claim, they cite a statement by Senator Howard, who introduced the language of the Citizenship Clause, in which he noted that the amendment would “not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

This statement does not prove the anti-citizenship advocates' claim. Senator Howard's description of the only class of children born on U.S. soil who would not be U.S. citizens automatically at birth was merely a summary of the widely accepted understanding that children of diplomats would not be birthright citizens. This is because of the legal fiction that diplomats, while physically present here, remain in a sense on the home ground of their country--hence the concept of diplomatic immunity. Senator Howard used the terms “foreigners” and “aliens” in the sentence quoted above to describe those “who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.” If Howard was intending to list several categories of excluded persons (e.g., foreigners, aliens or families of diplomats) he could have said so. Instead, the language he used strongly suggests he was describing a single excluded class, limited to families of diplomats.

This interpretation of the Reconstruction Framers' views on the classes of persons excluded from birthright citizenship is clarified by a statement made just six days prior to Senator Howard's introduction of the Citizenship Clause. In an exchange on the Senate floor, Senator Wade acknowledged a colleague's suggestion that some persons born on U.S. soil might not be automatically granted citizenship, stating “I know that is so in one instance, in the case of the children of foreign ministers who reside 'near' the United States, in the diplomatic language.” He went on to explain that children of foreign ministers were exempt not because of an “allegiance” or consent reason, but because there is a legal fiction that they do not actually reside on U.S. soil: “By a fiction of law such persons are not supposed to be residing here, and under that fiction of law their children would not be citizens of the United States.”

In light of the legislative history described above, it is highly unlikely that Senator Howard's comment regarding foreign diplomats means what opponents to birthright citizenship claim. A single comment plucked out of context should not be used to sweep aside the overwhelming text, history, and principles that point to the opposite conclusion. [Constitutional Accountability Center, 3/31/11]