As regards the children of U.S. citizens born abroad, Chief Justice Melville Fuller (with Justice John Marshall Harlan concurring), dissenting in U.S. v Wong Kim Ark (1898), said:

“Thus the fourteenth amendment is held to be merely declaratory, except that it brings all persons, irrespective of color, within the scope of the alleged rule, and puts that rule beyond the control of the legislative power.

“If the conclusion of the majority opinion is correct, then the children of citizens of the United States, who have been born abroad since July 28, 1868, when the amendment was declared ratified, were and are aliens, unless they have or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect.”

So, to Chief Justice Fuller, under Wong Kim Ark, children of U.S. citizens born abroad since 1868 “WERE AND ARE ALIENS.”

Sadly, he adds, these foreign-born could only be “naturalized in the United States”--and could NOT possibly be “naturalized,” if they happen to be somewhere else--with the rather grim caveat that “no statutory provision to the contrary is of any force or effect,” including, of course, “all [naturalization] acts from 1790 down.”

In the same Wong Kim Ark case, Justice Horace Gray in his majority opinion added a more disturbing note:

“In 1802, all former acts [naturalization acts of 1790 and of 1795] were repealed, and the provisions concerning children of citizens were re-enacted in this form ‘… the children of persons who now are, or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.' Act April 14, 1802, c. 28, 4 (2 Stat. 155) …

“But the provision concerning foreign-born children, being expressly limited to the children of persons who then were or had been citizens, clearly did not include foreign-born children of any person who became a citizen since its enactment. 2 Kent, Comm. 52, 53; Binney, Alienigenae, 20, 25; 2 Am. Law Reg. 203, 205. Mr. Binney's paper, as he states in his preface, was printed by him in the hope that congress might supply this defect in our law.

“In accordance with his suggestions, it was enacted by the statute of February 10, 1855, c. 71, that 'persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.' 10 Stat. 604; Rev. St. 1993.

‘It thus clearly appears that, during the half century intervening between 1802 and 1855, there was no legislation whatever for the citizenship of children born abroad during that period, of American parents who had not become citizens of the United States before the act of 1802; and that the act of 1855, like every other act of congress upon the subject, has, by express proviso, restricted the right of citizenship, thereby conferred upon foreign-born children of American citizens, to those children themselves, unless they became residents of the United States.”

So, to Justice Gray, “during the half century intervening between 1802 and 1855, there was no legislation whatever for the citizenship of children born abroad”; thus, during this 50-year period, foreign-born children of American parents--who had not become U.S. citizens before the naturalization act of 1802--were ALIENS.

In view of all this, can Senator John McCain still claim to be “natural-born,” or does he belong to the category of statutory citizens of the United States whose right to citizenship may be restricted by a mere act of congress?