One of the most fascinating characteristics of good political trials is that they use the tools of oppression to their own ends. One example of this is the Supreme Court's 1956 decision in Pennsylvania v. Nelson. 77 There, "finding a libertarian use for the Smith Act, [then Chief Justice] Warren ruled that, in passing that law, Congress had pre-empted the field of sedition and that states were, therefore, barred from punishing such conduct." 78 Similarly, in Yates v. United States, 79 the Court redefined what "organize" meant under the Smith Act and what must be "advocated" to run afoul of its provisions. In the process, the Court opened up and secured constitutional protections for the advocacy of ideas, no matter how unpopular or repugnant. In the first case, the Smith Act was used against itself, and in the second, it was used as a vehicle to affirm and expand First Amendment rights.
This characteristic, however, can work against itself. It can as easily signal a bad political trial as a good one. Most of the bad political trials that we have chronicled and analyzed employed the language of the Bill of Rights to pursue contrary ends. So, we must keep in mind that the concern for human dignity is never far from the heart of a good political trial and that an insensitivity to the impact of a policy on human dignity probably signals a bad political trial.
Some people may have the notion that it is natural for people to welcome change in the furtherance of personal dignity. It is also natural to identify and sympathize with those who are being denied this dignity and to resent those who dehumanize others. This, however, is true only as long as familiar things are happening and the change we experience is not too unexpected. But when circumstances are out of control and we do not know what to do, yet something must be done, it is just as natural for us to begin thinking in terms of "black and white" or "us versus them." That is why it is so easy for facile opportunists to gain political advantage. People are clamoring to be led against an identifiable enemy, and they are impatient with leaders who find this unreasonable.
On the other hand, there may be reasonable leaders in such circumstances who perceive a need to do certain things out of the ordinary, and it is quite a trick to determine exactly what the proper things are. This is the topic of the next chapter, where we will discuss the kinds of things that are justifiable in political trials in different social contexts.