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McElwee strikes again

Perkins case not applicable to Cruz

Pinckney G. McElwee

Back in the day, we had a discussion about an unpublished opinion piece by otherwise unknown attorney Pinckney G. McElwee read into the Congressional Record upon the occasion of George Romney’s candidacy for president in 1967-68. Romney was born in Mexico and his candidacy raised questions about whether a foreign-born citizen at birth was a “natural born citizen” for presidential eligibility purposes.1

McElwee concluded that the foreign born could not become president. His argument is applicable to the present candidacy of Ted Cruz, himself foreign born.

Scrambled McElwee

What has appeared on the Internet is a mangled version of the Congressional Record in a YouTube video by Bill Still. In Still’s version McElwee is promoted to a federal judge, and what appears in the Record is his decision in the case of United States v. Perkins, 17 F S 117 (sic), a lawsuit Still says was filed by Michael Perkins challenging the eligibility of George Romney.  Still posted his text at Mad World News. David Farrar talks about this case as precedent for Cruz in his comment at Creative Loafing, and it appears in various Google searches related to Cruz eligibility.

McElwee gives the Syllabus from Perkins and an excerpt from the decision, and one might be led to think that the case, in which the foreign-born petitioner was ruled not a natural born citizen, is applicable to George Romney and Ted Cruz; however, McElwee doesn’t give all the relevant information. I was hindered by the mistaken case citation from finding the case in previous tries. The corrected citation is United States v. Perkins, 17 F. Supp. 177 (D.D.C. 1936), and the decision is available at Justia.com.

The Facts of the Case

To start, the Perkins case is not a lawsuit by Michael Perkins challenging the eligibility of George Romney. The “Perkins” of the case was the defendant, Frances Perkins, US Secretary of Labor (1933-1945). The Syllabus cited by McElwee states that the petitioner was born in England of a mother born in the United States, and an English father. What it fails to state, but it clear in the decision, is that petitioner Winston Guest’s mother had lost her US citizenship upon her marriage by operation of a treaty between the US and England and various statutes in force when the marriage took place. That is, Mr. Guest  was the child of two English subjects born in England, and hence not a natural born citizen of the United States, even though his mother subsequently resumed her American citizenship under the Cable Act.

I’ve left a few comments around correcting the case citation.


1One scholarly work on that that came out of the debate was George Gordon’s paper, Who can be President Of The United States: The Unresolved Enigma, 28 MD L. Rev. 1,1 (1968).

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7 Responses to McElwee strikes again

  1. avatar
    Dave B. April 13, 2016 at 1:27 am #

    Winston Guest was a well-known polo player, and his younger brother (by a year and a half) was a US citizen born in New York who served as US Ambassador to Ireland in the 60’s. They were second cousins, I believe, to Winston Churchill. I remember coming across some interesting connection between Guest and…something, but I can’t recall what it is just yet.

  2. avatar
    Dr. Conspiracy April 13, 2016 at 7:52 am #

    I think that I am the first to have found the actual Perkins case. All other commenters rely on McElwee’s quoted Syllabus.

  3. avatar
    Rickey April 13, 2016 at 2:45 pm #

    Dave B.:
    Winston Guest was a well-known polo player, and his younger brother (by a year and a half) was a US citizen born in New York who served as US Ambassador to Ireland in the 60’s.They were second cousins, I believe, to Winston Churchill.I remember coming across some interesting connection between Guest and…something, but I can’t recall what it is just yet.

    His full name was Winston Frederick Churchill Guest. His mother was Amy Phipps, the daughter of Henry W. Phipps, who was a business partner of Andrew Carnegie. Henry W. Phipps was the grandfather of Ogden Phipps and great-grandfather of Ogden “Dinny” Mills Phipps, who were famous in thoroughbred racing (Ogden Mills Phipps died just last week).

    Winston Guest’s first wife was the granddaughter of F.W. Woolworth, the retail store magnate. His great-grandfather was John Spencer-Churchill, the grandfather of Winston Churchill.

  4. avatar
    Dave B. April 13, 2016 at 4:45 pm #

    Interesting family. I think it might have been his Hemingway connection I’d seen before– he was big friends with Hemingway, literally– the guy was a monster.

    http://www.corbisimages.com/stock-photo/rights-managed/U1060690INP/ernest-hemingway-with-friends

    He was part of Hemingway’s “Navy” that went looking for submarines when the US got into the Second World War, but left to join the Marines. So maybe that was it.

    Rickey: His full name was Winston Frederick Churchill Guest. His mother was Amy Phipps, the daughter of Henry W. Phipps, who was a business partner of Andrew Carnegie. Henry W. Phipps was the grandfather of Ogden Phipps and great-grandfather of Ogden “Dinny” Mills Phipps, who were famous in thoroughbred racing (Ogden Mills Phipps died just last week).

    Winston Guest’s first wife was the granddaughter of F.W. Woolworth, the retail store magnate. His great-grandfather was John Spencer-Churchill, the grandfather of Winston Churchill.

  5. avatar
    Rickey April 13, 2016 at 5:37 pm #

    Through the Phipps family he also was related to actress Allison Janney.

  6. avatar
    Keith April 14, 2016 at 8:34 am #

    Dave B.: Winston Guest was a well-known polo player,…

    And my Gawd isn’t the state of International Polo a mess. I mean really, you think FIFA has problems? Sheesh!

    Polo shirtfront: bitter stoush erupts among exclusive sport’s power players

  7. avatar
    Dave B. April 18, 2016 at 11:47 pm #

    In today’s Still Report, Bill refers to the Post & Email as “a law-oriented online newspaper.” I still can’t figure out if this guy’s for real or not.