Originalism may well include some consideration of consequences, but in a disciplined manner that prevents justices' values from driving the process.
On October 17, 1774, John Dickinson entered Carpenters’ Hall in Philadelphia and took his place as a delegate from Pennsylvania at the First Continental Congress. The Congress had begun on September 5, but Joseph Galloway, a conservative opponent of Dickinson’s, had managed to delay Dickinson’s election. Among Dickinson’s fellow delegates were John Adams, Samuel Adams, Thomas Cushing, and Robert Treat Paine from Massachusetts; Roger Sherman and Silas Deane from Connecticut; John Jay and Philip Livingston from New York; William Livingston from New Jersey; Thomas Johnson and Samuel Chase from Maryland; Richard Henry Lee, George Washington, and Patrick Henry from Virginia; and John Rutledge from South Carolina. When Dickinson appeared, the delegates must have been gladdened to have the most erudite and most celebrated of the American patriots at last among their number.
Dickinson had drafted the Declaration and Resolves and the Petition to the King of the Stamp Act Congress in 1765, and two years after that, he wrote his famous Letters from a Farmer in Pennsylvania. In 12 installments, Dickinson pulled apart the what he saw as Parliament’s unconstitutional assertions of its own powers. Forrest McDonald has written that the “impact and circulation” of the Letters “were unapproached by any publication in the revolutionary period,” at least until Thomas Paine’s Common Sense (1776). In the meantime, Dickinson had busied himself with Committees of Correspondence, wrote other pamphlets, and composed “The Liberty Song,” a hit throughout the colonies. He indefatigably pressed for non-importation pacts even during the brief thaw in relations between Parliament and the colonies from 1770 to 1773.
Though Galloway, Dickinson’s fellow Pennsylvanian, had stalled the latter’s arrival as a delegate, that had not prevented him from turning his productive pen to drafting the Congress’ documents for the other delegates. When Dickinson took his seat in Carpenters’ Hall, he was gratified to find that Congress has just passed its Declaration and Resolves, otherwise known as The Bill of Rights [and] Declaration of Grievances, of which Dickinson, working out of doors, had been the primary drafter. This, the most significant of the Congress’ papers, was a rejoinder to Parliament’s “Intolerable Acts,” which had been a massive retribution for Boston’s Tea Party. The Bill of Rights [and] Declaration of Grievances was radical—the production, Galloway said, of “the violent party.” Its natural rights premises and range of complaints would find their way into the Declaration of Independence in less than two years. Three days after being seated, Dickinson was pleased to vote for and sign the Articles of Association (something he had been advocating for years), boycotting all manner of British imports, including slaves, until Parliament repealed the offending legislation.
At that First Continental Congress, the renowned penman was also the primary author of three other documents, including yet another Petition to the King, when the person originally assigned to the task had botched the effort, and the Letter to the Inhabitants of the Colonies. Most important to the history of freedom of the press, the delegates assigned Dickinson to write a Letter to the Inhabitants of Quebec in hopes of convincing the French Catholics there of the righteousness of the American resistance. He deftly produced a draft in short order; by October 26, 1774, the Letter was ready.
Dickinson’s rhetorical tack was to warn the Canadians of perfidious Albion—to persuade them that the English promises to respect French Civil Law could not be trusted and that their uncertain fate lay in the hands of a deceitful British Governor. They ought, Dickinson urged, to join with the other colonies in a constitutional order in which one’s rights would be guaranteed against any arbitrary deprivation. Dickinson listed a number of rights that he clearly thought would be of signal importance to the French Canadians. They included the right to representative government, trial by jury, habeas corpus, and the end of feudal servitudes.
And now we come to the crux of it:
The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.
In few other places in pre-Revolutionary literature was the right of free expression expressed with such particularity. We can credit for the Letter’s authoritativeness its author, who was, at that time, the most respected spokesman of the colonial cause. But what of the Letter’s substance?
Let us gloss the text. The beginning subordinate prepositional phrase begins with “besides.” That “besides” affirms the fundamental grounds of freedom of expression that were so universally admitted that they almost need not have been mentioned: “besides the advancement of truth, science, morality, and arts in general.”
There is a world in those words. There was not one of the Framers—neither Benjamin Franklin, nor Thomas Jefferson, nor any other—who did not revere learning in every form or who did not participate in it, or seek to advance it. If there were an American Enlightenment code, it would be this. This freedom is not a mere self-expressive right, but a truth-seeking right, a right bottomed on natural law and those fundamental goods that every person is entitled to pursue.
The predicate phrase begins, “consists . . . in its diffusion of liberal sentiments on the administration of Government.” Freedom of the press will “diffuse liberal sentiments”; that is, it will persuade those in government to work for the common good and not for their own advantage. In the parlance of the time, freedom of the press will promote public virtue.
The phrase continues: “and its ready communication of thoughts between subjects, and its consequential promotion of union among them.” Dickinson, who was the most prolific of defenders of the American cause, had seen how his own works, as well as those of other Founders, had brought together a variegated collection of colonists—from Massachusetts to Georgia, from artisans to planters, from seafarers to back country folks—in a common cause. From the time when James Otis inveighed against the Writs of Assistance through Paine’s fiery tract (which ironically failed to persuade Dickinson), freedom of the press had begun to shape disparate colonists within disparate colonies into a nation.
The final subordinate clause reads, “whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.” Men prefer to commit their sins in private—to deny, dissimulate, deflect, or defuse. But freedom of the press is a rod on those in authority so that they will put aside their passions and conduct themselves as true representatives of the people.
It is significant that of the four desiderata of a free press in the Letter, the first three—truth, public virtue, and union—are primarily normative. Only the last—shaming public officials—is political in the most narrowly consequential sense of the term. It is this, interestingly, that seems to many in the judiciary and in the press to be the Letter’s central guarantee. But as a summary of the sense of the right of enquiry and expression, Dickinson’s formulation crystallizes the scientific, political, artistic, and legal values of the American colonies in the third quarter of the 18th century if not also before.
Dickinson had a competitor in exploring these concepts, and he was not even American.
Sir William Blackstone, the renowned judge and professor, had published his Commentaries on the Law of England in the years 1765 through 1769. Blackstone and Dickinson had both been members of the Middle Temple in London, and Dickinson was one of the first American subscribers to Blackstone’s work. In the Commentaries, as we know, Blackstone summarized and legitimated the law on seditious libel, a restriction on the press that most observers agree had never taken root in the colonies and that was flatly at odds with the principles of the Letter to the Inhabitants of Quebec.
Blackstone’s doctrine of seditious libel became an alien interloper into the native American conception of the freedom of the press, and over the next few decades, uncomfortably wedged itself into the American consensus. It was not until the 1960s that the Dickinsonian view of a free press as articulated in the Letter to the Inhabitants of Quebec finally expunged Blackstone from American jurisprudence on the First Amendment. The original original understanding of a free press had triumphed at last.
 The author is grateful for the assistance of the Charles Koch Foundation in the prosecution of this study, as well as the advice of Jane E. Calvert, Director/Editor, The John Dickinson Writings Project. The conclusions are the author’s.