Mandoli v. Acheson/Dissent Douglas

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice REED, and Mr. Justice CLARK concur, dissenting.

At the times relevant here Congress made the taking of 'an oath of allegiance to any foreign state' the ground for loss of American citizenship. 34 Stat. 1228, 8 U.S.C. § 17. The findings of the District Court in this case state that 'On May 24, 1931, the plaintiff took an oath of allegiance to the King of Italy.' That finding is uncontroverted here and the precise circumstances surrounding the taking of the oath are unexplained. All we know is that plaintiff, without protest, was inducted into the Italian Army and served there from April 14, 1931, to September 5, 1931.

If we are to base our decision on the record, we would be compelled to affirm. For it is plain that petitioner did take an oath of allegiance to a foreign state. The Court, however, ignores the record and rests on an opinion of the Attorney General in another case (cf. Mr. Justice JACKSON concurring, McGrath v. Kristensen, 340 U.S. 162, 176, 71 S.Ct. 224, 232, 95 L.Ed. 173), saying that one who took an oath in the Army of Fascist Italy dis so under duress. We have no basis for knowing that every inducted soldier who took an oath in Mussolini's army did so under duress. For all we know, this American citizen took the oath freely and gladly. At least, he took it. If we acted in the role of Secretary of State or Attorney General, we might exercise our discretion in favor of the citizen and decide not to move against him on such a showing. But we sit not as cabinet officers but as judges to decide cases on the facts of the records before us.