5 Academy • Management Learning & Education, 2012, Vol. II, N.docx

5 Academy •/ Management Learning & Education, 2012, Vol. II,
No. 3, 421-431. http://dx.doi.org/10.5465/amle.2011.0002A
An Interview With
Michael Porter:
Social Entrepreneurship and the
Transformation of Capitalism
MICHAELA DRIVER
Western State Colorado University
In this interview Michael Porter explores social
entrepreneurship in the context of a
larger transformation of capitalism. He suggests that social
entrepreneurship is an
important transitional vehicle toward the creation of shared
value and a capitalist
system in which meeting social needs is not just a peripheral
activity but a core aspect of
every business. Porter discusses the implications of this
perspective on social
entrepreneurship with a view to new opportunities but also
responsibilities for educators
in the field. I examine how this fits with but also extends
current debates on social
entrepreneurship. The interview concludes by examining where
Porter's ideas may take
us and reflecting on social entrepreneurship education as
conversations about the social
becoming more entrepreneurial but also the entrepreneurial
becoming more social.

In the spirit of a recent AMLE special issue on
sustainability inviting management educators to
join in a vital journey toward sustainable change
(Starik, Rands, Marcus, & Clark, 2010: 377), I invite
you to join one of the most renowned business
thinkers, Michael Porter, Bishop William Lawrence
Professor at Harvard Business School, on a vital
journey toward rethinking social entrepreneur-
ship. A leading authority on company strategy and
the competitiveness of nations and regions, his
work is widely recognized in governments, corpo-
rations, nonprofits, and academic circles across
the globe. He is the author of 18 books and numer-
ous articles. In addition to his research, writing,
and teaching. Professor Porter serves as an advisor
to business, government, and the social sector. He
has served as strategy advisor to numerous lead-
ing U.S. and international companies, including
Caterpillar, Procter & Gamble, Scotts Miracle-Gro,
Royal Dutch Shell, and Taiwan Semiconductor.
Professor Porter also plays an active role in U.S.
economic policy with the Executive Branch and Con-
gress, and has led national strategy programs in
I would like to dedicate this work to the memory of Dr. lames F.
Cashman, my friend and mentor. I will always remember his
unwavering support and all the laughter we shared.
numerous countries. He is currently working with the
presidents of Rwanda and South Korea. Here, I invite
you to explore social entrepreneurship in the context
of a transformation of capitalism that Porter argues
is already under way. Starting with the idea that
capitalism is currently moving toward the creation of
shared value, "which involves creating economic

value in a way that also creates value for society by
addressing its needs and challenges" (Porter &
Kramer, 2011: 64), Porter takes us on a big-picture tour
of how social entrepreneurship is different from cor-
porate social responsibility, how it fits with the idea
of shared value creation, and why it is important to
explore social entrepreneurship as a transitional ve-
hicle toward a new capitalism.
Along the way. Porter addresses why social en-
trepreneurship is an important step toward mak-
ing organizations with a social mission more
entrepreneurial, but also why social entrepreneur-
ship may not make all entrepreneurial organiza-
tions more social. He agrees that social entrepre-
neurship could continue to put Band-Aids on
problems created by capitalism and points out that
not all societal problems can be solved through
entrepreneurial solutions.
Porter examines the implications of this for busi-
ness education and stresses the need for a radical
421
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422 Academy of Management Learning & Education September
transformation of our curricula and how business
schools are managed. To Porter, social entrepre-

neurship programs can only be one effort in radi-
cally revising business curricula toward creating
shared value. Moreover, while students educated
in social entrepreneurship should be catalysts for
this transformation working wifh practitioners as
mentors, advisers, and consultants, a wider
change must include rethinking fhe entire value
chain of the business school to create shared value
in its operations and societal impact. Porter re-
flects on why fhe evolution he describes is immi-
nent, pointing to a current crisis of legitimacy of
capitalism but also to the struggle most executives
currently experience in search of a more meaning-
ful purpose for their corporations. Finally, Porter
examines social entrepreneurship as the sign of a
changing organizational Zeitgeist, and therefore,
as an academic field and practice that should be
aimed at mainstream business rather than treated
as a peripheral activity or specialization.
If we consider Porter's ideas within the context of
current thinking on social entrepreneurship, a few
things should be noted. First, he underlines what
researchers in the field of social entrepreneurship
have said before, namely that social enfrepreneur-
ship is an important trend in business and increas-
ingly important for business schools to integrate
as a subject (Tracey & Phillips, 2007). However, he
also stresses that social entrepreneurship is nof the
end of the joumey toward "positive social change"
(Tracey & Phillips, 2007: 265), rather, fhe crucial be-
ginning of a much needed larger transformation of
what we understand to be capitalism today.
Therefore, the interview invites us to shift cur-
rent debates in the field, for example, wifh regard

to how social entrepreneurship may be defined
(Mair & Marti, 2006) along a continuum from fhe
"creation of positive social change" (Tracey & Phil-
lips, 2007: 265) to "earned income in the pursuit of
social change" (Tracey & Phillips, 2007: 265) and
what we may describe as key characteristics of
social enterprises, such as accountability for so-
cial outcomes, fhe double bottom line and a dual
identify (Tracey & Phillips, 2007: 265). As we join
Porter in exploring social entrepreneurship within
the larger transformation of capitalism, we may
come to see that the creation of social change is
already part of an evolution and that economic
outcomes in the pursuit of such change are becom-
ing the new norm. Consequently, the characteris-
tics we think of as being unique to social enter-
prises may become the norm for every business. In
this sense, there is a new bottom line and new
organizational identities that are dual by defini-
tion rather than by exceptional design.
From this perspective, positive social outcomes
will be the key to success in an evolved capitalism
rather than the result of a special kind of business.
This, in turn, implies that social entrepreneurship is
especially important in a transitional phase where,
as Porter describes if, CEOs are grappling wifh the
meaningfulness of their enterprises not just as a fem-
porary response to a crisis of legitimacy of capital-
ism, but as a permanent shift toward fhe pursuit of
higher profits, that is, profits that also produce posi-
tive social change, and financial markets that re-
ward companies for doing just that.
As Porter describes it, CEOs are grappling
with the meaningfulness oí their

enterprises not just as a temporary
response to a crisis oí legitimacy oí
capitalism, but as a permanent shiit
toward the pursuit oí higher proiits, that is,
proiits that also produce positive social
change, and iinancial markets that reward
companies ior doing just that.—^Driver
In fhe context of this transition, it also becomes
clear why and how business education has fo
change. Porter is calling for a radical transforma-
tion in which business school curricula teach
shared value creation across the entire value
chain of a business and include fhe study of
deeper human needs as well as broader public
policy. Here Porter fakes techniques suggested
previously for social enfrepreneurship educafion,
such as fhe integration across curricula of social
entrepreneurship topics, social entrepreneurship
speakers, teaching cases, business plans, consult-
ing projects, and internships (Tracey & Phillips,
2007: 269) and underlines their significance as a
transitional phase within the wider evolution of
business education that will eventually require
that social entrepreneurship is a broad foundation
rather than a specialized field.
Porter cautions against such specialization and
social enfrepreneurship as a field being sidelined
similarly to corporate social responsibility, which
he criticizes for not going far enough and for de-
railing social value creation to a side activity of
businesses. Instead, Porter asks business educa-
tors to take responsibility for moving social entre-
preneurship forward as a core discipline within a
new understanding of what capitalism and busi-

ness are all about. In short. Porter asks us to re-
think existing ideas about social entrepreneurship
2012 Porter and Driver 423
as part of a larger movement calling for "a more
ethical and socially inclusive capitalism" (Dacin,
Dacin, & Tracey, 2011: 3). In particular. Porter might
point out that social entrepreneurship is indeed part
of a larger movement, but that to believe it to be a
call for a different capitalism is to miss a more im-
portant insight, namely that the movement toward
this different capitalism is already under way.
I will expand on the implications of these ideas
and make suggestions for how we might take them
further in the concluding section following the
interview.
Could you briefly explain the concept of shared
value and the role of social entrepreneurship
with regard to shared valued creation?
I think the idea of shared value is fundamentally
about the ability to both create economic value
and let us call it social or societal benefit simulta-
neously. It is really not about doing good and not
about charity. Fundamentally, it is about business.
Businesses create shared value when they can
make a profit—create economic value—while si-
multaneously meeting important social needs or
important social goals like improving environmen-
tal performance, reducing problems of health, im-
proving nutrition, reducing disability, improving

safety, and helping people save for retirement. The
basic idea of shared value is that there are many
opportunities in meeting these societal needs to
actually create economic value in the process.
Shared value is where you do both.
In Creating Shared Value (Porter & Kramer. 2011)
you distinguish between a narrow definition of
capitalism and a higher form of capitalism as the
next step in an evolution. So shared value is not
just "Should we think about doing more of the
good?" but it is about radically expanding our
ideas about what capitalism is.
That is right. It says that we have sort of evolved to
a conception of capitalism that has drawn narrow
boundaries and ruled out many of the most impor-
tant needs of society. In defining the scope with
which capitalism should operate, all the social
items have been ruled out or viewed as a different
agenda, which is corporate responsibility. We
have said that things like safety, focusing on the
local community, and improving environmental
performance are social not business. Therefore, if
we are going to do those things, we have to take
money from what we make in the business and we
deploy it for social things. The idea of shared value
says we can encompass all of these things in cap-
italism itself. Actually, there are many opportuni-
ties for for-profit firms or any other kind of firm to
make a substantial and positive impact on virtu-
ally every societal need if we can open up our
thinking of what capitalism really is.
That is a crucial turning point. / think you argue

that corporate social responsibility (CSR) says let
us also nof forget to do good while we are doing
business but that this is a side activity. With
regard to social entrepreneurship that would be
like saying let us put a little bit of the social in
the entrepreneurial. Now social entrepreneurship
as a growing trend in business schools and as an
entrepreneurial activity is defined by some as an
innovative use of resources to explore and exploit
opportunities that meet a social need in a
sustainable manner (Sud, VanSandt & Baugous,
2009). In a sense that may go much further than
corporate social responsibility saying let us be
social but use entrepreneurial approaches. Are
you saying either of those?
I am not saying either of those. First of all, I think that
that the spirit, momentum, and passion around so-
cial entrepreneurship are tremendously positive be-
cause I think it starts to bridge the divide between
what is in very different, almost orthogonal, and in
some cases competing fields. There are the folks that
worry about the social agenda and then there are the
folks that do business and those are in an uneasy,
and sometimes conflicting, relationship with each
other. I think the problem with so much social activ-
ity and so many NGOs and social enterprises, with
what is called a social orientation, is that they have
not thought in value terms.
They have been thinking too much about doing
good, about helping people, about providing char-
ity, about giving money, and they really have not
thought about creating value for whatever societal
problems that they are trying to address. And they
have not thought about the rigor and discipline of

management and entrepreneurial thinking, which
for me is about innovation, better ways of doing
things, and creating value where it has not existed
before. So the whole movement [of social entrepre-
neurship], I think, is about bringing a whole new
sensibility and a whole new set of tools and atti-
tudes to addressing social issues, which I think is
a good thing.
But shared value is really different. I mean it is
really not about the social in just being creative in
addressing a societal need. It is about the ability to
use the core of the power of the capitalist system in
order to do that. It is the simultaneous creation of
economic and societal value which, we would ar-
424 Academy oí Management Learning & Education September
gue, would allow societal value creation to be per-
petual and sustainable. Social entrepreneurship
can be defined broadly to include the use of market
principles and economic value thinking to social
problems. You could define social entrepreneur-
ship to be shared value but that is not the way I
think it is normally defined.
Social entrepreneurship has a continuum of
definitions (Peredo & McLean, 2006). Some define
it more as limited to the not-for-profit sector,
NGOs for example, using entrepreneurial models,
and others define it at the other end of the
spectrum as businesses doing philanthropy and
CSR. Then there are definitions in the middle that
say it is really both economic and social value

creation.
Yeah, so, I would prefer it to be in that middle
ground. I think if it is a pure not-for-profit definition,
then we are talking about really is a social organi-
zation doing social good without a business model,
without market principles, and that is fine, and in
some areas maybe that is the way to approach it. I
think on the other end of the spectrum that the CSR is
pure giving. I think I did put a little sentence in the
article at the last minute about how you could define
social entrepreneurship as being shared value.
I would actually like that definition because I do
think it captures the enormous power when you
really apply market principles, and not just the
conventional business activity, but also to ad-
dressing the social problems—which, I argue, are
some of the biggest needs in the world. If the fun-
damental role of businesses is to meet customer
needs, the needs of communities and so forth, then
opening up business to this agenda is, I think, an
enormously important thing to allow business to
continue to grow and innovate.
I gave this talk yesterday about shared value and
how it opens up whole new gigantic opportunities for
executives to think differently about their markets
and about how to grow and give purpose to the
corporation. A purpose containing shared value
moves well beyond getting your employees fired up
about being in business to create shareholder value,
which I think is not very motivating. So I do believe
that we are still groping a little bit for a definition of
social entrepreneurship and I think it could be de-
fined as the same as creating shared value.

Let me asJc you about the research on social
entrepreneurship and what seems to be some
tensions there between whether the
entrepreneurial is becoming more social or the
sociaJ more enfrepreneuriaJ (Dacin, Dacin &
Tracey, 2011). If you look at social entrepreneurs,
the stories that they tell, the struggles they are
involved in, and the reasons for doing it,
oftentimes they are saying they adopt business
language because they have to (Parkinson &
Howorih, 2008). Critics have suggested that if an
organization is not identified as entrepreneurial,
and they are "just social" then they are in some
way inefficient, almost dysfunctional, and have
no right to exist anymore. So, social
entrepreneurship may also expand capitalism
into domains that perhaps it should not be, or
used to downplay the role of nongovernment
organizations and welfare systems (Dey &
Steyaert, 2010). Can you address that?
Yeah. Well, I think something I should have said
earlier is I do not think that all dimensions of all
social issues can be addressed by corporations
using shared value principles. I think I say this in
the article. Maybe someday that will be the case
but I think for the foreseeable future, we are going
to need a portfolio of institutions in society that are
going to be playing different roles. So the corpora-
tions can adopt and, I think, increasingly will
adopt more of those roles. But many of the corpo-
rations that are the most innovative in shared
value are really pure NGOs that are providing
really public services or assets, and government,

of course, has to take on certain functions both in
terms of public good and in terms of regulatory
assets and choices.
So, I think, the truth is that there is the business
for-profit zone and there is probably a . . . what you
might call, pure nonprofit zone, and then there is a
government zone. Often, when you are attacking
these societal issues, if the government and the
NGOs are doing their job, then the opportunities
for business to create shared value are greater
because the environment and the platform are
present to enable that.
So it is collaboration. It is not a driving out of
nonbusiness institutions.
No, it is not. But I think there should be a bias
toward doing whatever you can to create a revenue
model where the customer has the ability and will-
ingness to pay and you can generate economic
value in the process of improving the environment
or making farmers more productive. You know, you
should do that. I would say that all nonprofits need
to think more in value terms.
Therefore those nonprofits that do not, have less ...
Will not get support and funding. There are still
going to be philanthropy and foundations that give
money to do things. But those foundations should
be increasingly aware of the opportunity of shared

value models to actually drive along these issues.
They should see many of their investments as not a
kind of stand-alone investment, but as enabling
shared value and making strategic investments in
what you might call platform issues, like basic
education and infrastructure, that then create the
possibility for shared value to be pursued by the
more business or capitalist model. And, that is a
subtle, but very different perspective.
But even for the folks that are doing the platform
work, they have to be driven by value creation.
They need to start measuring themselves. If we
are in the education platform and improvement
business, we have got to measure whether we
are really doing it, and we have got to find ways
to do it as efficiently as we can. That does not
mean we have a revenue model. That just means
that we have to think in value terms, not just in
how much we spend, or whether we have good
intentions.
Some of fhe more critical voices in social
entrepreneurship are saying that social
entrepreneurs may be picking up the pieces left
behind by what you describe as this narrowly
defined capitalism (Dey & Steyaert. 2010).
Capitalism is creating the problems that they are
then supposed to mop up. In that sense some have
critiqued social entrepreneurship as really
undergirding further this narrow view of
capitalism. It is as if mommy comes along and
bails you out. Social entrepreneurs bail us out of
the problems created by a narrow definition of
capitalism.

Yes, that is well said. I think that this is a fear and
it is legitimate.
So how can we keep that from happening? In
Creating Shared Value (Porter & ¿ramer, 2011) you
say that you are sure that some corporations will
still follow the narrow definition of capitalism and
will still be profit maximizing at the expense of
societal needs.
They will ignore the societal opportunity.
Exactly, and so if that is the case then what is
going fo prompf fhe fransfonnafion of capitalism?
The social entrepreneurs are there to bail us out
right? If we keep somehow patching the current
system with Band-Aids, then what is the impetus for
change?
Well, what we want is actual market forces to work
and we want the companies that are good at see-
ing their opportunities more broadly and redefin-
ing capitalism to win. And we want the companies
that do not get it to be driven off the playing field.
How do we do fhaf?
One way of doing that is to have a whole bunch of
people trained around social entrepreneurship be-
come really the point people. Some of them are
going to go into mainstream corporations and
hopefully those are going to be the people that
help switch mainstream corporations in this direc-
tion. I mean I have been stunned at how many
e-mails and letters and things I have gotten about

this article. I think there is a lot of latent activity
out there in corporations, but they really did not
have a way of giving voice to it and making these
critical distinctions between what CSR has come
to be and this much bigger opportunity. I think
social entrepreneurs are going to be a very impor-
tant catalyst because in many cases they come
first to some of the great ideas.
Yesterday there were a bunch of bankers in the
room and I said: "Look, one of the largest banking
services on the face of the earth you guys com-
pletely missed. Microfinance. There is now a lot of
for-profit activity in microfinance. You missed the
whole thing. Shame on you. How could you have
missed it?" And that was because they were in the
bubble. They were thinking about meeting the
same old conventional needs of the same old con-
ventional types of customers, not thinking about
those customers in this broader sense that we need
to learn to think of.
I think we ought to be encouraging the social
entrepreneurship movement. But I think we need to
be informing that movement with some of the key
concepts of shared value. Shared value is a way to
help them [social entrepreneurs] think about what
they are really doing here and that is really creat-
ing social benefit and creating economic value
simultaneously. I think those people then can be
one of the market forces that starts to push and
prod corporations and inspire them to do things
differently.
But I think some of this is going to be bubbling
within the corporation itself. I have spoken over

the last few years to many of the people that lead
the CSR function in the most prestigious corpora-
tions in the world. What I can tell you is they are
ready for this. I mean they are ready. They have
/ think we ought to be encouraging the
social entrepreneurship movement. But I
think we need to be informing that
movement with some oí the key concepts
oí shared value. Shared value is a way
to help them [social entrepreneurs] think
about what they are really doing here
and that is really creating social beneiit
and creating economic value
simultaneously.—Porter
kind of got it that what they are doing is not all that
effective, that they are constantly having to justify
themselves with the CFOs of this world, and that
that is a tough battle, not a losing battle, but cer-
tainly not a winning battle. So I would not rule out
the mainstream corporations. I think some of them
will be enormously innovative in this area as well.
If you say that this is part of a larger discussion
of rethinking capitalism, then how much of a
space for critical discussion, questioning, and
reflection on the current system do you see? Some
are suggesting rethinking social entrepreneurship
as a space in which we can discuss dominant
ideologies and dysfunctions of capitalism (Dey,
2006). So might we even question things like how

much profit is enough?
Well, I think, your point is raising a number of
questions. In terms of how much profit is enough, I
think, the right answer to that question should be:
whatever you can make fairly, honestly, and ethi-
cally within the framework of laws and regulations
governing competition. We can obviously argue
about how effective those laws are, but I think that
profit is not bad. Profit is a sign that you have
created economic value, that you have created
something you can sell for more than the cost of
producing it. That is a good thing.
But you distinguish between profit and a kind of
higher form of profit in your article.
I say that all profit is not equal.
Exactly what do you mean by that?
That profit that comes with benefiting society is a
higher form of profit that corporations should aspire
to. If they can redefine that aspiration that way, they
will indeed benefit by having a sense of much
greater purpose. But I would be very hesitant to ar-
gue that profits are too high and that we should tax
them away and so forth. I think that is a slippery
slope, which leads you in a bad direction. I have seen
these negative impacts in country after country.
Now the other thing we have not covered, which
I need to be really clear on, is that all of this
discussion presumes meeting the letter and the
spirit of the law and that companies and managers

operate ethically. Obviously we are not there. I
mean there are a lot of corporations that do not
operate ethically and there are some that fudge the
law, cut corners, and break the law. That is a
different problem. That is a problem we have to
continue to address. That is kind of a foundational
problem.
In your article you argue that the legitimacy of
capitalism is at an all time low and that is why
this evolution of capitalism has to happen. But
one way to think about this is if the crisis of
legitimacy passes, and we manage to patch it up,
can we go back to business as usual?
I do not think that people will want to go back to
business as usual because I think that business as
usual has become less satisfying for many CEOs,
frankly, and for many employees and many of the
graduates of this school and other business
schools.
Have you talked to CEOs who say that to you?
All the time. And I think sometimes, many of the
leaders I interact with feel trapped in the system
as it is defined today and they feel like they are
having ridiculously short time horizons and I think
they feel uncomfortable about CSR because of the
impact they did not see. I have a program here that
I do with a couple of my colleagues for newly
appointed CEOs of very large corporations. We do
it twice a year and [have] maybe about twelve
CEOs in each one. Over the last decade I have
probably had a couple hundred of the main CEOs
in the world. I sent this article out to all of them just

before it was published and received many re-
sponses. I think this kind of crisis of purpose is
being felt in the mainstream business community.
And so my sense of it is, once we have a different
way of thinking about this, I would not think we
would go back to business as usual.
So you do nof see this as a prisoner's dilemma
where we are racing to the bottom and no one is
making the first move because it does not fit
within the current financial market parameters
for example?
I think that the companies that start to figure this
out are going fo fit within the financial market.
They are actually going to be driving growth and
profitability and fhey are going fo be innovating.
We will see. This is going to be a very interesting
campaign. Mark Kramer (Porter & Kramer, 2011)
thinks that the next key phase here is to document
as many examples as we can find in every industry
and every field so that people understand that we
can do this, and it does actually create shared
value and not just social benefifs. There is kind of
a proof-of-concept here and then the next thing
that has to happen is this idea has to penetrate
beyond the specialists and the people in the cor-
porate foundation and the folks that do the social
stuff. It has to penetrate into the thinking of the
management team of fhe division or the subsidiary
thinking about their plan for next year. They need

to see that, "by gosh, we all of a sudden have a lot
more opportunity than we thought we did because
we were missing a lot of needs that our customers
care about and we were missing ways of taking
costs out of our supply chain because we were
ignoring resource utilization, logistics and energy
and things like that."
Are business schools fhe firsf fronf of fhaf?
Our job is to put this into the mainstream of man-
agement rather than having it as a side agenda.
That is the way that CSR and corporate philan-
thropy have been treated, as a side agenda.
Our job is to put this into the mainstream
oí management rather than having it as
a side agenda. That is the way that CSR
and corporate philanthropy have been
treated, as a side agenda.—Porter
So to change the thinking in business schools has
to be one of the first things to happen?
Ideally, because they have a lot of leverage. Busi-
ness schools have been very effective in teaching
about outsourcing and offshoring, and that is why
a lot of managers that are running companies do it.
We have the same obligation to bring this new set
of opportunities for improving economic value to
managers of this generation. We are lucky here [at
Harvard] that we have, at this moment, that kind of
sensibility being brought to bear. So I am optimis-
tic. Some schools I think moved a little bit faster
than we did in curricular transformation. We have

always tinkered with our curriculum and I think it
is a pretty fine curriculum. But we have not had fhe
kind of more large-scale review of our curriculum
in a long time, and so we are just doing that now.
We have a lot of agendas here, but this one is
going to be high on the list, is my prediction.
It sounds like you are doing a shared value audit
of your current curriculum and current practices?
Yeah, that would be a good way of describing if.
Have you thought about this in terms of a shared
value audit and how you measure shared value?
Oh, that is another thing that is needed, some more
measurement fools. In a sense it is nof rocket sci-
ence. Economic value, fhey all know how to do
that. You know, profit and cost. On the social side,
though, we have to start keeping track of the prog-
ress on metrics that best define the social impact
or benefit that is being created simultaneously.
Ironically I see a lot of companies in their annual
reporfs will measure the social stuff. They talk
about carbon, energy, and water use but, they
do not include fhe economic benefits that they
have achieved from that.
So fhe connecfion befween social
enfrepreneurship and shared valued could be
very powerful especially with regard to what you
have been saying about two things: number one,
rethinking the foundations of capitalism and the
crises of legitimacy of the current narrow
definition of capitalism, and number two, your
short advice at the end of your HBR piece (Porter

& iframer. 2011) fo business schools and what
their role might be. Again there is a continuum
here from some schools completely rethinking
their programs, like offering an MBA in social
change, to the other end, where it is just an
additional class in social responsibility. But
again, as business schools are grappling with
this, do you fhinJc fhaf fhis could be an
opporfunify fo infroduce shared value across the
business curriculum?
Yes, and that would be what I would argue is fhe
implication of this thinking. It is not that you should
have a course necessarily in shared value, but that
when you teach marketing you should be teaching
students about creating product designs and distri-
bution channels and marketing approaches that en-
compass these dimensions which widen the oppor-
tunities for value creation and differentiation and all
the conventional things that marketing tries to do but
that exclude many of these societal and "social is-
sues." Everybody that takes a production course
ought to know about resource efficiency in the value
chain and energy utilization and that should not be a
side thing for people that are touchy feely. It is about
how to do good production and operations manage-
ment. Now there may need to be some kind of a
course that really gets at the very deep questions of
what is capitalism, what is the role of the corpora-
tion, and how the corporation relates to society.
Maybe we need such a course as part of our core

curriculum. But I think ultimately that the shared
value ideas really need to be embedded in many of
the core courses.
Do you see sociai entrepreneurship programs as
one vehicle for doing that?
Yes, although I do not want us to balkanize the
idea. What we do not want to do is create the next
version of a CSR department or the next version of
a corporate foundation. This has to be seen as part
of excellence in all the relevant functions of the
business and that will happen over time. I mean
there are lots of small, interesting, socially focused
enterprises. There will be jobs there and places for
graduates to go. But ultimately if we want this to
really matter, it is going to have to be incorporated
into mainstream thinking.
You are talking about an evolution in which
capitalism changes form. How do business
schools change accordingly? Is social
entrepreneurship in some sense a great. I am
going to call it. Trojan horse, if you will, because
it does not come at it from the "we are social"
perspective, it says "we are entrepreneurial?"
I think you are right. Social entrepreneurship is
kind of, if you will, a Trojan horse or transitional
vehicle, but over time that should not be the
end state.
Well. no. because if the evolution that you are
predicting happens, social entrepreneurship will
become redundant, will it not?

Yes, exactly. It will be redundant.
How do you see business schools creating shared
value? Some social entrepreneurship programs
have tuition forgiveness, saying that if students
do go into social entrepreneurship then tuition
would be free or at lower cost. How do business
schools apply that logic of shared value to
themselves and how would we measure that?
Could one measure of success, for example, be
the extent to which we graduate social
entrepreneurs or people going into corporations
that are rethinking this narrowly defined
capitalism?
Yeah. I think we are successful if the market share
of corporations that are viewing their relationship
with society differently goes up. We can define
success as people from business schools going
into organizations that have this shared value sen-
sibility that is informing and engaging them in
their work. I am not sure about forgiveness of tu-
ition. That is a little bit of CSR. If taking money
from whatever else we have in our checkbook and
essentially giving it to the nonprofits that we are
supporting, then if we wanted to do that in a CSV
[creating shared value] way, we would try to create
more of a win-win opportunity. This is a very in-
teresting question and I will ponder it. I do not
have all the answers but I think CSR thinking is "I
am a good guy, I want to do good, so I give some of
my profits that I earn from my normal business to
help you with your important social objectives."
And CSV says, "how do we redefine what we do?"

Right, and what would that look like in business
schools?
I would say that step one is the curriculum itself
and step two is how we, as organizations, operate
in terms of all those resources and other impacts
that we talk about. Then perhaps the third is how
does the business school play a much more posi-
tive role in the local community, in supporting the
growth of a healthy economy and healthy small
businesses working in ways that will reduce pov-
erty and create business opportunity? All those
things would be in that category of cluster thinking
and some of the good business schools are doing
that. Another one of my little ventures is the com-
petitive inner city where for 15 years we have been
focused on business development in distressed
communities in urban areas. And business schools
can play an enormous role in training managers
from these communities, as well as having stu-
dents work with them as advisers, consultants, and
mentors. I think business schools can probably
move the needle on all three of these agendas: first,
the product side, our curriculum, how we teach it,
what we cover; second, the way we operate our own
institutions in terms of our value chain; and third, the
way we can have a bigger positive impact on the
local community. I think that all those areas are a
legitimate opportunity for business schools.
So shared value is really about changing the

thinking or the discourse not just in businesses
but also in business schools, right?
Absolutely.
And how much would you say is Harvard doing
in fhaf direction? If you looked at Harvard today,
is there a vibrant discussion among faculty and
students about how to create shared value?
That discussion I would not say is yet surfaced. We
have a social enterprise program and it is quite
substantial. And we have a bunch of faculty and
courses and so forth, probably not as substantial
as a proportion of our total activity as some of the
other schools. So I would not call it a unique dis-
tinctive area of strength at this point, but I think
what we do is substantial. But again I think even
here we are still making that intellectual transition
between corporate social responsibility and some
of the definitions of social enterprise as a new
formulation which says, it is not CSR, this is main-
stream. It has to be a conversation about what
capitalism is really all about, and whether we can
take capitalism to its next stage. That discussion is
really just beginning here and with any luck it will
take root.
If you are saying that some of this is already
going on ouf fhere in terms of shared value
creation, is social entrepreneurship one of those
indicators that businesses and business schools
are grappling with these issues, and they just
have not found a good way of doing this on a
larger scale?

I think it is a sign of the times. What I found over
my period of active work here is that it is a 5- to
10-year process before you see large-scale adop-
tion of a new paradigm, a new framing of what is
important and how we think about the problem
and things like that. This will take time because
there are a lot of things that need to happen and
there is a lot of learning going on.
But it is all voluntary, a trend, an evolution that
is happening out there because people are
looking for different purpose, those kinds of
things?
They are looking for a different purpose, different
ways of doing things.
Social entrepreneurship is parí of that
movement...
It is really the source, the purpose. If you cannot
deal with social needs in mainstream business,
there are a whole cadre of young people that say,
"well, gee then, I am not going to go into main-
stream business, I have to find another vehicle."
Social entrepreneurship has been this incredible
vehicle for people. Hopefully, that will continue to
happen and it will still be their goal, but it will get
developed and the distinctions will get clearer in
terms of what is the purpose of this particular enter-
prise, and how does it fit in this mosaic of organiza-
tions that need to play different roles to enable soci-
ety to progress. My prediction is that over time,
mainstream business will be a more welcoming and
more exciting place to be again, I hope.

CONCLUSIONS
As we think about this interview and its implica-
tions, an important starting point may be Porter's
concern about social entrepreneurship being un-
derstood in the context of a larger transformation
of mainstream business. To Porter, social entrepre-
neurship is not an isolated phenomenon, some sort
of special business practice for special people, but
rather a catalyst moving all businesses in the di-
rection of shared value. The implication of this for
business educators is that social entrepreneurship
represents not only a new opportunity, but also a
new responsibility. As a catalyst, social entrepre-
neurship's role is to move the entire business cur-
riculum toward shared value creation. That is, in
every business course we are to address how busi-
ness can meet social needs. From marketing to
broader human needs rather than just commercial
ones, to teaching financial statements reflecting
social and environmental impacts, we are to retool
for shared value creation.
The implication of this for business
educators is that social entrepreneurship
represents not only a new opportunity,
but also a new responsibility.—Driver
In thinking about the challenges this poses for
business educators, we may take as a point of
departure Porter's own experience in trying to in-
troduce conversations about how to do this in his
institution, the Harvard Business School. As he ad-
mits in the interview, shared value creation in the

curriculum and value chain is a complex task that
might take years to realize. However, if we connect
this task to the idea that, as Porter suggests, we
may need a portfolio of institutions to deal with
today's social problems, we might apply the same
logic to changing business schools. As a result, we
could begin the conversation by mapping out what
kind of institutions we could include in this change.
With a view toward research suggesting that young
people are especially likely to be drawn to social
entrepreneurship (Harding, 2007: 83) and current
events, such as protests on Wall Street organized by
and likely important to many young people, would it
make sense, for example, to include community or-
ganizations, grass roots movements or social activist
groups in conversations about shared value and how
the field of social entrepreneurship can move for-
ward the changes that these organizations call for?
In other words, is there an opportunity to broaden
business school management and curricula in the
way that Porter calls for while taking in and expand-
ing many of the motives that might inspire social
entrepreneurs?
Looking at recent research on the stories that ac-
tual social entrepreneurs tell, we hear that local and
political struggles are commonly key to how social
entrepreneurs define what they do and why they do
it (Parkinson & Howorth, 2008). If we take these con-
cerns seriously and consider them in light of Porter's
arguments, we may find that social entrepreneur-
ship education has the opportunity to advance entre-
preneurial solutions to social problems, but it also

has the responsibility to inspire critical thinking
about the potential limitations of such solutions. Por-
ter's enthusiasm for the idea that the social should
become more entrepreneurial should not blind us to
the pressure this creates for any organization with a
social mission to demonstrate entrepreneurial devel-
opment even if this runs counter to what the social
entrepreneurs themselves believe to be effective
(Dey, 2006; Parkinson & Howorth, 2008). Moreover, it
should not obviate the cautionary note about solving
problems with the same thinking that created those
problems in the first place. If capitalism has created
many of the societal problems that social entrepre-
neurship is there to solve, we may question whether
expanding capitalism into more and more areas is
going to lead to the "positive social change" (Tracey
& Phillips, 2007: 265) we may hope for.
As I reflect on this interview, I think that social
entrepreneurship indeed has a crucial role to play
in business and business education. As our stake-
holders, that is, students, practitioners, and com-
munity members, grapple with what business and
capitalism mean to them, I think we have an op-
portunity to examine shared value creation not just
in terms of what should be shared, but also what
we consider to be of value in the first place. Social
entrepreneurship certainly gives us a platform to
advance new conversations in the classroom and
beyond about how the social can become more
entrepreneurial and therefore how it can take its
proper place in the capitalist system.
However, and this to me is crucial, there is also a
responsibility for advancing conversations about

how the entrepreneurial can become more social
and what capitalism's place can or should be in a
society. Prior research has suggested that social
entrepreneurship should create an open discursive
space in business education where teachers and stu-
dents can explore not just what is, but also what is
possible from multiple and critical perspectives
(Dey, 2006; Dey & Steyaert, 2010). As we move social
entrepreneurship forward, it seems that Porter's
ideas give us a new, potentially transformational,
grand narrative about what business is, but we
should not forget that there is also a multitude of
little narratives of how business is experienced and
lived every day. Therefore, as we listen to the little
narratives of social entrepreneurship (Dey & Stey-
aert, 2010) told by practitioners, students, community
members and other stakeholders, we, as business
educators, should take responsibility for making a
space in which little narratives can flourish while
we, together, continue to shape the evolution not just
of capitalism but of human societies in this world.
REFERENCES
Dacin, M. T., Dacin, P. A., & Tracey, P. 2011. Social
entrepreneur-
ship: A critique and future directions. Organization Sci-
ence, (22) 5: 1203-1213.
Dey, P. 2006. The rhetoric oí social entrepreneurship: Paralogy
and new language in academic discourse. The third move-
ments oí entrepreneurship: 121-142. Cheltenham, UK: Ed-
ward Elgar Publishing.
Dey, P., & Steyaert, C. 2010. The politics of narrating social
entrepreneurship. Journal oí Enterprising Communities. 4:

85-108.
Harding, R. 2007. Understanding social entrepreneurship.
Indus-
try and Higher Education, 21: 73-88.
Mair, J., & Marti, 1. 2006. Social entrepreneurship research: A
source of explanation, prediction and delight. Journal oí
World Business. 41: 36-44.
Parkinson, C, & Howorth, C. 2008. The language of social en-
trepreneurs. Entrepreneurship and flegional Development,
20: 285-309.
Porter, M. E., & Kramer, M. R. 2011. Creating shared value.
Harvard Business Review, January-February: 62-77.
Starik, M., Rands, G., Marcus, A. A., & Clark, T. S. 2010. From
the
guest editors: In search of sustainability in management
education. Academy oí Management Learning & Education,
9(3): 377-383.
2012 Poríer and Driver 431
Tracey, P., & Phillips, N. 2007. The distinctive challenge of
edu-
cating social entrepreneurs: A postscript and rejoinder to
the special issue on entrepreneurship education. Academy
of Management Learning and Education, 6: 264-271
Michael E. Porter
Michaela Driver is professor of

business administration at West-
ern State Colorado University
where she teaches organiza-
tional behavior and human re-
source management. Dr. Driver
has a PhD in OB/HRM from the
University of Alabama, and in-
dustry experience in consulting
with Price Waterhouse and in the
automotive sector with GM and
Mercedes. Driver researches al-
ternative and psychoanalytic ap-
proaches to a wide range of orga-
nizational topics, such as change, learning, leadership and
identity, and has published over two dozen studies in top-
ranked international journals, such as Organization Studies,
Human Relations, Organization, Management Learning, Jour-
nal of Organizational Change Management, Journal of Business
Ethics, and Journal of Management Inquiry.
Copyright of Academy of Management Learning & Education is
the property of Academy of Management and
its content may not be copied or emailed to multiple sites or
posted to a listserv without the copyright holder's
express written permission. However, users may print,
download, or email articles for individual use.

1487
MAN, MORALITY, AND THE UNITED STATES
CONSTITUTION
Daniel Lambright∗
INTRODUCTION
The United States Constitution, in popular consciousness, is
often
treated as though it miraculously sprang up from the minds of a
group of enlightened statesmen. Although this conception of
the
founding of the United States government works well as a
founda-
tional myth, it does not accurately characterize the deep level of
debt
the Framers of the Constitution owed to the intellectual
traditions of
the previous two centuries. Hundreds of years of philosophical
in-
quiry into the nature of man conditioned their perspectives on
these
issues. Indeed, the Framers’ views on moral philosophy were
influen-
tial in the crafting of the structure of the new American
republic.
The greatest intellectual traditions that guided the Framers’
views on
morality and politics were the developments in natural law
theory
and Scottish Enlightenment thought.
This Comment is an investigation into the moral theories that
in-

fluenced the Framers in crafting the structural elements of the
Unit-
ed States’ federal republic. Part I will explore the deep link
between
the natural law theorists, Scottish Enlightenment philosophers,
and
the Framers. Part II will delve deeper into natural law theory
and
Scottish Enlightenment thought. Part II.A, of this section, will
exam-
ine the relevant key tenets of sixteenth and seventeenth century
natu-
ral law theory, with special attention paid to the works of Hugo
Gro-
tius, Samuel Pufendorf, and John Locke. Part II.B will examine
the
key tenets of Scottish Enlightenment philosophy, primarily
exploring
the works of Francis Hutchenson, Thomas Reid, and David
Hume.
Part III will focus on the incorporation of these philosophical
insights
on morality and human nature into the United States
Constitution.
This section will involve the discovery of important fissures
between
the Framers on their conception of man. Framer James
Wilson’s and
the authors’ of The Federalist (John Jay, James Madison, and
Alexan-
∗ J.D. Candidate, 2015, University of Pennsylvania Law
School; B.A., 2012, Bates College
2012. I would like to thank everyone who was involved in the
production of this com-

ment.
1488 JOURNAL OF CONSTITUTIONAL LAW [Vol. 17:5
der Hamilton) theories of man and government will be
explicated to
illuminate crucial differences. The final section, Part IV, will
center
on the implications of these differences for an American
jurispru-
dence that places great weight on originalism.
I. SOURCES OF EARLY AMERICAN THOUGHT
The Framers of the Constitution were influenced immensely by
the intellectual world in which they were born. The political
writings
of the colonists reveal they were well versed in a variety of
sources
from classical antiquity to contemporaneous developments.
Ancient
Greek and Roman sources cited by the colonists included
Homer,
Plato, Aristotle, Vergil, Seneca, and Cato.1 These theorists
provided
the conceptual lense for how the colonists viewed their
condition.
For the colonists, their time was one of encroaching tyranny.
Just like
the enlightened statesmen of Rome, they were witnessing the
destruc-
tion of a land once “full of virtue: simplicity, patriotism,
integrity, a

love of justice and of liberty . . . .”2 Similar in establishing the
para-
noid mindset of the colonists, and even more influential in
driving
the logic of the American Revolution, was the Whig Party in
Eng-
land.3 The colonists took seriously the Whigs’ conspiracies and
false
prophecies of tyranny and enslavement that would soon befall
Brit-
ain.4 English common law and American Puritanism were also
influ-
ential sources of American colonial thought.5 In structuring the
gov-
ernment, however, the two most intellectually important
influences
were natural law theory—the idea that man-made law and moral
principles share a deep connection6—and Scottish
Enlightenment
thought.7
The Framers of the United States Constitution were versed in
nat-
ural law theory and early Enlightenment rationalism. Their
exposure
to natural law theorists came while they were young men.
Young co-
lonial men were introduced to theorists like Locke and
Pufendorf in
their boyhood, teenage years, and again in university as part of
their
1 See BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF
THE AMERICAN REVOLUTION 24
(1967).

2 Id. at 25–26.
3 Id. at 34.
4 Id. at 34–54.
5 Id. at 30–32.
6 See BAILYN, supra note 1, at 26–27; see also KNUD
HAAKONSSEN, NATURAL LAW AND MORAL
PHILOSOPHY: FROM GROTIUS TO THE SCOTTISH
ENLIGHTENMENT 312 (1996).
7 See James J.S. Foster, Introduction to SCOTTISH
PHILOSOPHY IN AMERICA, at i (James J.S. Fos-
ter ed., 2012).
May 2015] MORALITY AND THE CONSTITUTION 1489
teachings in moral philosophy.8 While in university, men of
the
Framers’ generation would be subjected to lectures based
around
support or refutation of “Christian utilitarian principles.”9
Training
in natural law theory was an important and pervasive part of
Ameri-
can colonial education. This education in the natural law
tradition is
reflected in the political writings of the colonists.10 The
pamphlets
the colonists used to disseminate their political messages are
filled
with citations to natural law theorists.11 As Bernard Bailyn
notes,

“[T]he American writers cited Locke on natural rights and on
the so-
cial and governmental contract . . . Grotius, Pufendorf,
Burlamaqui,
and Vattel on the laws of nature and of nations, and on the
principles
of civil government.”12 Though the citations were frequent,
they were
not always used in a philosophically robust manner.13 Mostly,
around
the time of the Revolution, the sources were interpreted broadly
enough to be used by both loyalists and revolutionaries in
denounc-
ing each other’s positions.14 The works of the natural law
theorists
are even found in the libraries of the Framers.15 It is estimated
that
the most popular book in American colonial libraries was
Locke’s An
Essay Concerning Human Understanding.16 An estimate by
David
Lundberg and Henry F. May suggests that 45% of personal
libraries
contained Locke’s Essay.17 By the time the Revolutionaries
became
the Framers, they had been long immersed in the language of
natural
law theory and English rationalism.
The Framers were also intimately associated with the work of
the
philosophers of the Scottish Enlightenment. Scottish
Enlightenment
philosophy was another integral part of American colonial
education.
Scottish immigrants filled the faculties and administration of

colonial
institutions like Harvard, Yale, Princeton, Penn, and William
and
Mary.18 Thomas Jefferson was tutored by a Scottish teacher at
William
and Mary, while Madison attended Princeton during the
presidency
of Scotsman John Witherspoon.19 Witherspoon turned
Princeton in-
8 HAAKONSSEN, supra note 6, at 323.
9 Id. at 324.
10 BAILYN, supra note 1, at 26; HAAKONSSEN, supra note 6,
at 325.
11 BAILYN, supra note 1, at 27.
12 Id.
13 Id. at 28.
14 Id. at 29.
15 See Robert A. Rutland, Madison’s Bookish Habits, 37 THE
Q. J. OF THE LIBR. OF CONG. 176,
181, 183 (1980).
16 See MARK G. SPENCER, DAVID HUME AND
EIGHTEENTH-CENTURY AMERICA 12 (2005).
17 Id.
18 Foster, supra note 7, at 2.
19 Id.
to a repository of Scottish Enlightenment thought and
introduced

young, eager minds—like that of James Madison—to the major
Scot-
tish Enlightenment thinkers.20
Some of the Framers had personal connections to Scottish En-
lightenment figures. Framer James Wilson is an example of this
con-
nection. Wilson was born in Scotland and was educated at the
Uni-
versity of St. Andrews during the height of the Scottish
Enlightenment.21 Wilson continued to study the Scottish
Enlighten-
ment philosophers after he graduated from St. Andrews before
he
eventually immigrated to the United States and became a
lawyer.22
Benjamin Franklin also had a personal connection to the
Scottish En-
lightenment. A good deal older than most of the Framers,
Franklin
was approximately the same age as Scottish Enlightenment
figures
David Hume and Thomas Reid. Franklin struck up a personal
rela-
tionship with Hume, visiting him twice in Scotland in 1759 and
1771.23 The two kept a correspondence back and forth
discussing
matters of science, politics, and religion.24
The men who would structure the government of the United
States were well connected to the intellectual climate
surrounding
them. They were taught the great intellectual icons of natural
law,
Grotius, Pufendorf, and Locke, and they were more directly
versed in

the nearly contemporary intellectual developments going on in
eighteenth century Scotland.
II. THE PHILOSOPHICAL FOUNDATION OF THE
FRAMERS
In order to completely understand the manifestation of the Euro-
pean intellectual traditions reflected in the United States
govern-
ment, those traditions must be examined in greater detail. Since
natural law theory and Scottish Enlightenment thought were
equally
influential in shaping the generation of men who would
establish the
United States government, the following section is a general
survey of
the relevant ideas of both of these intellectual movements.
20 Id. at 3; see also JACK N. RAKOVE, JAMES MADISON
AND THE CREATION OF THE AMERICAN
REPUBLIC 3 (3d ed. 2007).
21 LIBRARY OF SCOTTISH PHILOSOPHY, SCOTTISH
PHILOSOPHY IN AMERICA 55 (James J.S. Fos-
ter ed., 2012); see William Ewald, James Wilson and the
Drafting of the Constitution, 10 U. PA.
J. CONST. L. 901, 902 (2008).
22 Ewald, supra note 21, at 903–04.
23 SPENCER, supra note 16, at 53–54.
24 Id. at 54–62.

A. Natural Law Theory
Although natural law theory has ancient and medieval roots, the
strand that most influenced the American Framers developed
and
matured in the time directly preceding the Enlightenment and its
early stages.25 The seventeenth century is often referred to as
“the
century of genius” primarily for the large change in gestalt that
oc-
curred.26 While the late seventeenth century is often pegged as
the
starting point of the Enlightenment, the work done by Francis
Bacon,
Isaac Newton, John Locke, as well as the natural lawyers in the
early
part of the century, paved the way for the latter movement. 27
These
thinkers forever changed how people view phenomena, shifting
ex-
planation away from the use of tradition and towards the use of
rea-
son.28 Early Enlightenment thinkers were motivated by a
“systematic
spirit.”29 No endeavor, be it practical or theoretical, escaped
their
quest to produce rational and systematic explanations of the
world
around them.30 The natural law theorists, Hugo Grotius,
Samuel
Pufendorf, and John Locke, extended this quest to morality.
They
sought to understand morality and God’s role in moral laws in a
le-

galistic way consistent with new, Protestant ideas about God
and his
role in the affairs of man.31 Furthermore, they sought a
systematic
account of how positive law, the laws of men, fit with the laws
of mo-
rality.32
1. Reason and Moral Epistemology
The natural law theorists of the seventeenth century placed a
strong importance on human reason and the ability to figure out
moral truths. This shift toward reason was the result of the
shift away
from a god who was directly involved in human and earthly
affairs.33
The Protestant God was a god who was with disconnected from
man.
26 See LEONARD KRIEGER, KINGS AND PHILOSOPHERS
1689–1789 (1970) (noting that enlight-
enment thinkers tried to explain the world by use of rationality
rather than appeals to re-
ligious traditions).
27 Id. at 138–39.
28 Id. at 139.
29 Id. (internal quotation marks omitted).
30 Id. at 142.
31 See T. J. HOCHSTRASSER, NATURAL LAW THEORIES
IN THE EARLY ENLIGHTENMENT 2–3

(2000) (suggesting that the German Protestants recognized
distinctive spheres of divine
law and human natural law and debated over how to reconcile
the two).
32 Id. at 4.
The link between man and God was through human reason. 34
It was
through reason that man could ascertain the right and wrong
actions
to take.35 There were two different views on the method of
reasoning
to arrive at God’s law. Grotius favored an inductive method to
arrive
at natural law. On the Grotian account, in order to arrive at the
nat-
ural laws an examiner needed to explore the positive laws and
cus-
toms of various countries.36 Later successors, Pufendorf and
Locke,
would reject this inductive methodology and seek to explain
knowledge of natural law and moral principles through
deductive
reasoning.
Pufendorf endorsed a program that Locke would later develop in
a more thorough manner.37 Locke argued in An Essay
Concerning

Human Understanding that morals were capable of
demonstration.
Locke stated:
I suppose, if duly considered, and pursued, afford such
Foundations of
our Duty and Rules of Action, as might place Morality amongst
the Sci-
ences capable of Demonstration: wherein I doubt not, but from
self-
evident Propositions, by necessary Consequences . . . the
measures of
right and wrong might be made out, to any one that will apply
him-
self . . . .38
Locke believed that morality works like a geometric proof. In
figur-
ing out the morally right action, all one needs to do is to reason
from
axiomatic truths. This has two implications for the Lockean
picture
of morality. First, the knowledge of moral duties and rules of
action
are not innate in humans.39 This position is consistent with his
argu-
ments against innatism in the earlier part of Essay and his
famous tab-
ula rasa doctrine.40 Second, morality is beyond the realm of
sensa-
tion, which contrasts with his empricist program for other
sources of
knowledge.41
For the natural law theorists, natural law and morality were,
like

mathematics, supposed to be derived through human reason.
Ra-
34 Id.
35 Id.
36 HOCHSTRASSER, supra note 31, at 53.
38 I JOHN LOCKE, AN ESSAY CONCERNING HUMAN
UNDERSTANDING 351 (Alexander Campbell
Fraser ed., n.d.) (emphasis omitted).
39 See HAAKONSSEN, supra note 6, at 53 (discussing how
culture plays a role in establishing
customs and laws); see also J. B. SCHNEEWIND, Locke’s
Moral Philosophy, in THE CAMBRIDGE
COMPANION TO LOCKE 200 (Vere Chappell ed., 1994)
(describing how Locke specifically
denied that morality has innate characteristics).
40 See LOCKE, supra note 38, at 37 (arguing against the idea
that there are innate principle in
mind, referred to as his tabula rasa or black slate argument).
41 See DAVID OWEN, HUME’S REASON 30 (1999) (stating
that Locke thought that we are able
to form beliefs that extend beyond the senses or memory
through probable reasoning).
tionality was the hallmark of humanity and was supposed to

allow
man to understand the desires of a god who was no longer
directly
interacting in earthly affairs.
2. Rights and Duties
For natural law theorists, the starting point for the substantive
ac-
count of natural rights and duties was with individuals. Grotius
shift-
ed the discussion of natural law away from perfectionism and
law di-
rected at how man should act to achieve the highest good, to a
theory
of individual rights.42 On the Grotian picture, individuals’
rights were
prior to all positive law. Another crucial element was that all
individ-
uals had these rights.43 In constructing society, on Grotius’s
account,
individuals cede some rights but retain others in order to
function in
a community. Thus, positive law is created to protect those
rights
which man did not give up.44 For Grotius the primary natural
law was
not to violate others’ rights.45 Violations of these rights were
ultimate-
ly subject to a sanction by God.46
Pufendorf and Locke both make an important split with Grotius.
In their natural law theories, God has a much more direct role
than a

mere giver of sanctions. On the Pufendorfian account, God
created a
world that was both physical and moral.47 Both parts of the
world
God created are self-contained and distinct. Whereas value is
objec-
tive in the physical word, in the moral world, value is created
by hu-
mans. Though man creates value in this world, his creation of
value
is derived from God’s natural law.48 Thus, rights and duties
are not
derived from the agreements of men but ultimately from natural
laws.49 Both Locke and Pufendorf hold that natural rights are
“pow-
ers to fulfill the fundamental duty of natural law.”50 The core
focus of
natural law for both theorists was to promote self-preservation
and
the preservation of humanity.51
42 SCHNEEWIND, supra note 39, at 209; HAAKONSSEN,
supra note 6, at 28.
43 SCHNEEWIND, supra note 39, at 209–10.
44 Id.
45 Id.
46 Id.
48 Id. at 38–43.
49 Id. at 40.
50 Id. at 55.
51 Id.

B. Scottish Enlightenment Philosophy
The second major source of philosophical influence was the phi-
losophy of the Scottish Enlightenment. This intellectual
movement
occurred during the mid-to-late parts of the eighteenth century.
The
major developments of the movement were contemporary with
the
lives of the Framers. Though there were agreements between
the
natural law theorists and the Scottish Enlightenment
philosophers,
the latter produced their own very influential philosophy. Some
of
the themes in the Scottish Enlightenment explored here include
(a) moral epistemology, (b) theory of humans as social animals,
and
(c) theory of action.
1. Moral Epistemology
Within the Scottish Enlightenment thinkers there were two
major
contrasting views on how man could discover moral truths in
the uni-
verse. David Hume and Thomas Reid presented vastly different
pic-
tures of the moral world. David Hume’s philosophy is known

for its
empiricism and skepticism. Contra natural law theorists, Hume
was
skeptical of all systems of morality and argued against the idea
that
morals could be derived at through reason. Moral propositions,
for
Hume, were very different than the natural law theorists before
him.
In A Treatise of Human Nature, he describes morality in the
following
way:
An action, or sentiment, or character is virtuous or vicious;
why? because
its view causes a pleasure or uneasiness of a particular kind . . .
. To have
the sense of virtue, is nothing but to feel a satisfaction of a
particular kind
from the contemplation of a character. The very feeling
constitutes our
praise or admiration. We go no farther; nor do we enquire into
the
cause of the satisfaction. We do not infer a character to be
virtuous, be-
cause it pleases: But in feeling that it pleases after such a
particular
manner, we in effect feel that it is virtuous. The case is the
same as in our
judgments concerning all kinds of beauty, and tastes, and
sensations.
Our approbation is imply’d [sic] in the immediate pleasure they
convey
to us.52
Moral propositions, for Hume, were not statements of an

objective
truth but rather were statements of subjective feelings. On the
Humean account, when one speaks of an action being “bad” or a
“vice,” one is only really saying that the action causes
discomfort or
pain. The deductive certainty of Locke’s moral world does not
exist
52 DAVID HUME, A TREATISE OF HUMAN NATURE 303
(Norton & Norton, eds., 2005) (1738)
(emphasis omitted).
in the Humean picture.53 It follows that Hume’s moral
epistemology
is based not on reasoned deduction but rather on a
psychological
empirical investigation into the causes of pleasures and pains
for hu-
mans.
Hume argues that his empiricist program works for political
truths
as well. Hume envisioned politics as a science.54
Propositional state-
ments on the governmental structures necessary for society were
to
be arrived at empirically.55 In order to arrive at these truths,
agents
need only investigate the historical record.56 On the Humean
pic-

ture, political scientists can look through history, and look at
the ac-
tions of men in history, to devise political truths. Hume’s
political
truth that man cannot be trusted with unlimited power is not
ascer-
tainable from natural laws, but rather from the accumulation of
his-
torical facts that all men who have had absolute power became
ty-
rants.57
Thomas Reid provides a different view of morality. Reid argues
that moral judgments relate to propositions about what is
actually
right and wrong and not merely what one feels.58 Reid
continues to
lay out an almost intermediary account between rationalism and
em-
piricism on moral truths. Reid posits that there exists a moral
sense.59
This moral sense produces moral judgments gathered from evi-
dence.60 William C. Davis reconstructs Reid’s moral
psychology and
epistemology as involving “(a) formulating conceptions of an
agent
and her action, (b) the moral sense determining the moral
relation
sustained by the agent-action pair, and (c) the faculty of
judgment
being convinced by the unhesitant testimony of the moral
sense.”61
Also available for understanding one’s moral duties, on the
Reidian

53 See FRANCIS SNARE, MORALS, MOTIVATION AND
CONVENTION: HUME’S INFLUENTIAL
DOCTRINES 14 (1991) (stating that Hume claims moral
judgments are not rationally de-
rived by deduction or other modes of inference).
54 MORTON WHITE, PHILOSOPHY, THE FEDERALIST,
AND THE CONSTITUTION 19–20 (1987).
55 Id.
56 Id.
57 See id. at 19 (pointing to historical records as “collections
of experiments” that can be
studied scientifically); see also RUSSELL HARDIN, DAVID
HUME: MORAL AND POLITICAL
THEORIST 108–11 (2007) (stating that history evidences how
power derives from increas-
ing fitness, or “coordination,” and that power expands as it is
used).
58 Keith Lehrer, Reid, the Moral Faculty, and First Principles,
in REID ON ETHICS 25, 29 (Sabine
Roeser ed., 2010).
59 Id. at 25; see Alexander Broadie, Reid Making Sense of
Moral Sense, in REID ON ETHICS 91, 91
(Sabine Roeser ed., 2010).
60 Broadie, supra note 59, at 91; see Lehrer, supra note 58, at
25.
61 WILLIAM C. DAVIS, THOMAS REID’S ETHICS: MORAL
ESPISTEMOLOGY ON LEGAL
FOUNDATIONS 95 (2006).

picture, are certain morally self-evident principles.62 It is
through ap-
peals to these principles that individuals sharpen and fine-tune
their
moral sense and moral judgments of the right course of action.
63
The moral sense helps individuals apply general moral truths to
par-
ticular situations.
Reid developed his moral philosophy from the works of early
Scottish Enlightenment philosopher Francis Hutchenson and
English
philosopher Bishop John Butler.64 Both Hume and Reid’s
moral phi-
losophies, though vastly different, reflect the commitment that
the
Scots had for empiricism and the experiential gathering of
knowledge.
2. Man as a Social Animal
Also prevalent in Scottish Enlightenment philosophy was an ar-
gument against psychological egoism. The psychological
egoism ar-
gued against by most of these philosophers was devised by
Thomas
Hobbes. The Scottish Enlightenment philosophers took the
Hobbes-
ian man to be purely self interested.65 The first element in the

refuta-
tion of this conception of man was an argument against the state
of
nature hypothetical.66 Rather than abstracting from the
hypothetical
man in hypothetical situations, these philosophers examined
actual
men and actual societies.67 From their empiricism, they argued
that
man, at his core, is a social creature and that this sociality
cannot be
reduced to mere egoism. Most of the theorists agree that there
are
three general reasons that explain the sociality of man. First,
many of
the philosophers explain that man has an instinct for society.68
This
instinct for society is best demonstrated by his development of
lan-
guage to communicate with other members of his society.69
Second,
Scottish Enlightenment philosophers pointed to the family as an
ex-
planation of the sociality of man. 70 Humans have natural
inclinations
62 Id. at 110.
63 Id.
64 For discussions of pre- and early Scottish Enlightenment
thinkers, see generally FRANCIS
HUTCHESON, ON HUMAN NATURE: REFLECTIONS ON
OUR COMMON SYSTEMS OF MORALITY
ON THE SOCIAL NATURE OF MAN (Thomas Mautner ed.,
1993) and TERENCE PENELHUM,

BUTLER (1985).
65 See CHRISTOPHER J. BERRY, SOCIAL THEORY OF THE
SCOTTISH ENLIGHTENMENT 30–31
(1997).
66 Id. at 24.
67 Id.
68 Id. at 25.
69 Id. at 27.
70 Id.
to produce children and have relations with the opposite sex,
accord-
ing to the philosophers, which necessitate social
relationships.71 Fi-
nally, humans have bonds of friendship and loyalty which are
both
strong and transcend self-interest.72 The ability for man to risk
his life
out of loyalty or friendship was a capacity that a reductive
account of
psychological egoism could not explain.73
3. Theory of Action
Though the general consensus was against philosophical
egoism,
there were divergent views on the role of self-interest and

rationality
in motivating man to act. Hume’s theory of action relies on his
earli-
er theory of the passions and will. On the Humean picture, the
pas-
sions of man (i.e., emotions and desires) are primarily divided
into
direct and indirect passions.74 Direct passions are those which
arise
immediately from the actions of good or bad and pain or
pleasure.75
An example of a direct passion is aversion. If a child gets
shocked by
an electrical socket they will avert that feeling. Indirect
passions are
more complex in that they require both the feeling and an
idea.76
One of the examples of an indirect passion, for Hume, is
pride.77
Hume argues that it is these passions, both direct and indirect,
that
control how men act.78 Reason alone does nothing. When a
man is
burned when touching a hot stove, it is not reason alone that
pro-
vides him with the motivation to act, it is the passion of
aversion pro-
duced by the stimulus that causes his action. Reason may, on
the
Humean account, direct action or guide judgment but it alone is
never sufficient to cause human actions.79 The causal
inefficacy of
reason alone is what grounds Hume’s famous statement:
“Reason is,
and ought only be the slave of passions . . . .”80

Reid presents a different picture of human action. On his ac-
count there are three principles of action. These principles are
me-
chanical principles, animal principles, and rational principles of
ac-
71 Id.
72 Id. at 28e
73 Id.
74 HUME, supra note 52, at 335.
75 Id.
76 Id. at 335–36.
77 Id. at 335.
78 Id. at 318.
79 Id. at 318.
80 Id.
tion.81 By mechanical principles, Reid means those acts taken
without
the use of will. These are best thought of as instincts or
habits.82 An-
imal principles are those with intentional properties that do not
pre-
suppose the use of reason. Reid considers passions, desires, and
ap-
petites to be animal principles.83 Finally, rational principles
require
judgment, meaning that they require reason.84 He argues,
contra
Hume, that certain ends can only be conceived of through the

use of
reason. These ends that require the use of reason are
conceptions of
the good, which in turn are sufficient to produce action.85 It is
this
ability to form general principles that produce rational
principles of
action that separate man from brutes only focused on particular
pre-
sent objects.86
In summation, Scottish Enlightenment moral and political
theory
took a step back from the rationalism of the previous century.
Whether it was the decentralization of reason by Hume in his
quest to
create the “science of man,” or his foe Thomas Reid’s common
sense
philosophy, both eschewed a moral philosophy based in pure
reason.
Hume and Reid (as well as the other Scottish Enlightenment
think-
ers) laid down a fertile soil for intellectual debate and for men
across
the Atlantic Ocean to craft a constitution.
III. THE PHILOSOPHY OF THE AMERICAN FRAMERS
Much has been written about the philosophical traditions in The
Federalist, whereas less has been written about the
philosophical tradi-
tions found in James Wilson’s Lectures on Law. Though by all
ac-
counts Wilson was one of the most theoretically sophisticated
Fram-
ers, he has largely been forgotten. Despite his obscurity,

Wilson was
one of the most influential individuals at the Constitutional
Conven-
tion, contributing vigorously to the debates as well as to the
docu-
ment produced.87 Thus, it is important to carefully analyze the
tradi-
tions found in both The Federalist and Wilson’s Lectures on
Law to
arrive at a true picture of the philosophical commitments of the
most
influential Framers.
81 See Nicholas Wolterstorff, Reid on Justice, in REID ON
ETHICS 187, 187 (Sabine Roeser ed.,
2010).
82 Id.
83 Id. at 188.
84 Id.
85 Id. at 189.
86 Wolterstorff, supra note 81, at 190.
87 See Ewald, supra note 21, 901–02 (discussing how James
Wilson had many accomplish-
ments for which he did not receive recognition).
A. The Philosophy of The Federalist
The Federalist represents an amalgamation of the philosophical

traditions of the proceeding centuries. There is a mix of natural
law
moral insights as well as Scottish Enlightenment theory.
Particularly,
David Hume’s arguments were very influential in crafting the
argu-
ment in Madison’s Federalist No. 10.
1. The Moral Epistemology of The Federalist
In addition to Thomas Jefferson’s rhetoric in the Declaration of
Independence, Publius88 also endorses a Reidian epistemology
re-
garding moral and political truths. Hamilton opens Federalist
No. 31,
a continuation of the defense of the power of taxation found in
the
Constitution, with a discussion of truth. Hamilton states:
In disquisitions of every kind there are certain primary truths,
or first
principles, upon which all subsequent reasonings must depend.
These
contain an internal evidence which, antecedent to all reflection
or com-
bination, commands the assent of the mind. Where it produces
not this
effect, it must proceed either from some disorder in the organs
of per-
ception, or from the influence of some strong interest, or
passion, or
prejudice. Of this nature are the maxims in geometry . . . . Of
the same
nature are these other maxims in ethics and politics . . . . And
there are
other truths in the two latter sciences which, if they cannot

pretend to
rank in the class of axioms, are yet such direct inferences from
them, and
so obvious in themselves, and so agreeable to the natural and
unsophisti-
cated dictates of common-sense . . . .89
He goes on to argue that moral and political principles, though
less certain as those principles of geometry and mathematics,
work in
the same way.90 Consistent with Reidian thought, Hamilton
argues
that, in the realm of morality and politics, people often let their
pas-
sions and biases cloud their common sense analysis of
axiomatic
principles.91 Hamilton then goes on to derive the power of the
gov-
ernment to tax citizens from these common sense axiomatic
moral
truths.92 This move allows Hamilton to argue that the
individuals who
oppose the Constitution are blinded by their passions and have
failed
to be guided by reason.
88 “Publius” was the pseudonym under which Madison, Jay,
and Hamilton published THE
FEDERALIST. Introduction to THE FEDERALIST, at vii
(Clinton Rossiter ed., 2003). When re-
ferring to all three authors I will use “Publius.”
89 THE FEDERALIST NO. 31 at 189 (Alexander Hamilton)
(Clinton Rossiter ed., 2003).
90 Id. at 190.

91 Id.
92 Id. at 190–91.
This section shows Publius’s (or at least Hamilton’s)
commitment
to Scottish common sense moral epistemology. Like in Lockean
the-
ory, Publius treats certain moral and political truths as
axiomatic
principles. But consistent with Reid and Common Sense
Scottish phi-
losophy, those axiomatic principles are attainted through
introspec-
tion on common sense principles.
2. The Moral Psychology of The Federalist
While The Federalist may endorse a Common Sense and,
perhaps,
Lockean understanding of moral epistemology, the authors’
under-
standing of man’s nature and moral psychology is much more
in-
debted to David Hume. The two places in which the arguments
about human nature do the most work are in Federalist No. 10
and Fed-
eralist No. 51.
In Federalist No. 10, Madison argues for the extended
republic.93
In arguing for the extended republic, he argues against

Montesquieu,
who stated that only small territories could house republican
gov-
ernments, by advancing a thoroughly Humean argument.94 The
ma-
jor problem for a democratic republican form of government,
for
Madison, was the faction.95 Madison believed that the faction
served
as an immense threat to liberty and the well being of the
country.
Madison defines the faction as:
[A] number of citizens, whether amounting to amajority or
minority of
the whole, who are united and actuated by some common
impulse of
passion, or of interest, adverse to the rights of other citizens, or
to the
permanent and aggregate interests of the community.96
As Morton White notes, this definition puts Madison in line
with
Hume’s writings on factions.97 Hume and Madison believe that
the
93 THE FEDERALIST NO. 10, at 75 (James Madison) (Clinton
Rossiter ed., 2003).
94 See WHITE, supra note 54, at 96; see also Daniel C. Howe,
The Political Psychology of The Fed-
eralist, 44 WM. & MARY Q. 502, 507–08 (1987).
95 THE FEDERALIST NO. 10, supra note 93, at 71–72 .
96 Id. at 72.
97 WHITE, supra note 54, at 97–99. Hume himself in Of

Parties in General, states:
Real factions may be divided into those from interest, from
principle, and
from affection. Ofall factions, the first are the most reasonable,
and the most ex-
cusable. Where two orders of men, such as the nobles and
people, have a distinct
authority in a government, not very accurately balanced and
modelled, they natu-
rally follow a distinct interest; nor can we reasonably expect a
different conduct,
considering that degree of selfishness implanted in human
nature. It requires
great skill in a legislator to prevent such parties; and many
philosophers are of
opinion, that this secret, like the grand elixir, or perpetual
motion, may amuse men in
theory, but can never possibly be reduced to practice.
DAVID HUME, Of Parties in General, in 3 THE
PHILOSOPHICAL WORKS OF DAVID HUME 54, 58
(1854).
problem with factions are that they are self-interested on
particular
goods, while not interested in the greater societal well being.98
This
focus on the good of the particular group maximizes the good of
that
group at the expense of the whole community, which in turn

pro-
duces tyranny.
After providing a Humean definition of factions, Madison goes
on
to solve the problem. Madison states that the problem can be
solved
either by controlling the “causes” or “effects” of factions.99
One such
cause of factions is liberty. Liberty to associate and form
groups is a
necessity for faction formation. Madison easily rejects the idea
of
eliminating liberty to control factions as absurd.100 The
second cause
of factions is differences in opinions, passions, and interests.
In order
to eliminate this cause of factions, the state would have to give
“to
every citizen the same opinions, the same passions, and the
same in-
terests.”101 In response to this solution, Madison declares that
men
will naturally have different opinions, passions, and interests:
As long as the connection subsists between his reason and his
self-love,
his opinions and his passions will have a reciprocal influence on
each
other; and the former will be objects to which the latter will
attach them-
selves. The diversity in the faculties of men, from which the
rights of
property originate, is not less an insuperable obstacle to a
uniformity of
interests.102

Madison continues on to explain how differences in skill,
property,
and religion will always produce a diversity of passions,
opinions, and
interests.103 This pessimistic note concludes Madison’s
discussion on
the causes of factions. On the Madisonian picture, factions
cannot be
erased by their causes and thus are an innate part of any society
that
values liberty.
Madison’s solution to the problem comes in controlling the ef-
fects of factions. Controlling the effects of minority factions is
not a
problem in a democracy. Minority factions will be controlled
by a
democratic check.104 Essentially, Americans have recourse
against
minority factions through outvoting their interests. Controlling
the
effects of larger factions however is a problem. Majority
factions are
to be kept in line by the extended republic because the
expansive
scope of the republic creates a space with more interests,
passions,
98 See WHITE, supra note 54, at 109.
99 THE FEDERALIST NO. 10, supra note 93, at 72.
100 Id.
101 Id. at 72–73.
102 Id. at 73.
103 Id.

104 THE FEDERALIST NO. 10, supra note 93, at 75.
and opinions and thus, more factions.105 Since there will be
more fac-
tions and those factions will occupy more space, they will
ultimately
keep each other in check and fight against other factions’
attempts to
gain power and impose tyranny.
Federalist No. 51 also provides this same type of argumentation
for
checks and balances and federalism. Madison famously states:
“If
men were angels, no government would be necessary. If angels
were
to govern men, neither external nor internal controls on
government
would be necessary.”106 This is a statement that man in his
nature can
be self interested and power seeking to the point of the
destruction
of liberty. Thus, liberty preservation requires two additional
checks
on this nature of man. The first check is to control the powers
of the
ruler. This check on the ruler’s power is through dividing the
func-
tions of government among distinct minimally dependent
branch-
es.107 The second security against tyranny is the division of

power be-
tween the federal government and state governments.108
Madison
states: “Hence a double security arises to the rights of the
people.
The different governments will control each other, at the same
time
that each will be controlled by itself.”109
While it is clear the extended republic argument and the argu-
ments on governmental power ultimately derive from Hume and
Montesquieu, there is some argument that the moral psychology
is
based actually in Reidian philosophy.110 Though there may be
some
truth to that position, the argument for the extended republic
cannot
succeed without a Humean moral psychology. The reason why
fac-
tions are problematic and why their causes cannot be controlled
is
because they are influenced by what White calls “particular
passions”
and these passions cannot be made the same.111 Individuals in
fac-
tions focus on their own self interest, desires, and passions and
not
those of the aggregate whole. This conception of factions
requires
that passions are stronger than reasons. Further, Madison states
in
Federalist No. 55, “[P]assion never fails to wrest the scepter
from rea-
son.”112 Madison believed that it would be futile to try to use
reason

105 Id. at 78.
106 THE FEDERALIST NO. 51, at 319 (James Madison)
107 Id.
108 Id. at 320.
109 Id.
110 See Howe, supra note 94, at 489–90 (discussing how
Publius adopted aspects of the “hu-
man faculties” described by Thomas Ried, including “passions,”
“affections,” and “self-
interest”).
111 WHITE, supra note 54, at 109.
112 THE FEDERALIST NO. 55, at 340 (James Madison)
to motivate men in factions to act for the good of the whole of
the
country. Man’s own selfish interests and particular passions
motivate
his actions and causally move him. Since reasons are slaves to
pas-
sions, interests, and desires, the only way to solve the problem
of the
faction is to extend the republic.
The follower of a Reidian moral psychology would need a
differ-
ent argument to extend the republic. For Reid, a reasoned

concep-
tion of the good is an essential part of human motivation. Sure,
there
are animalistic principles of motivations and passions, which
cloud
his conception of the general good, but those can all be
regulated by
appeals to common sense principles of morals attainable to all
men.
On the Reidian picture it must be the case that men in factions
can
be morally educated to see those common sense moral
principles and
thus, as rational agents, motivate themselves to work toward the
bene-
fit of the whole. For Reidians, particular conceptions of the
good of
one faction, as the expense of the common good, will dissipate
as
one’s understanding of the common sense moral principles
strength-
en. If Madison was a Reidian he would need a stronger
argument as
to why giving everyone the same reasons and understandings of
the
moral principles of the world could not motivate their behavior
to
work for the common good of the country. Madison does not
pro-
vide this argument, what he instead says is that differences in
interests
and essentially innate and unchangeable. Madison’s argument
in The
Federalist needs a self-interested man whose conception of the
com-
mon good is causally weak in order to craft out their structures

of
dispersing power.
B. The Philosophy of James Wilson’s Lectures on Law
James Wilson has been noted as one of the most philosophically
developed of the Framers. His Lectures on Law113 of 1791–
1792 repre-
sent a comprehensive treatment of American jurisprudence. The
work stands as theoretically sophisticated because of its
reliance on
moral and political philosophy.114 Wilson builds his distinctly
Ameri-
can jurisprudence from a theory of man and natural law.
113 See generally 1 JAMES WILSON, THE WORKS OF
JAMES WILSON (James DeWitt Andrews ed.,
1895).
114 JAMES WILSON, Of Man, As an Individual, in 1 THE
WORKS OF JAMES WILSON 206 (James
DeWitt Andrews ed., 1895) [hereinafter As an Individual].
1. Wilson’s Moral Psychology
The main portions of the Lectures on Law where Wilson
expounds
a theory of moral psychology are the “Of Man” sections. These
sec-
tions work to set the foundation for his justification of the

American
Constitution and the formation of a new American
jurisprudence.
Early in Of Man, as an Individual, Wilson echoes the Scottish
Enlight-
enment attack on the Hobbesian use of a hypothetical state of
nature
argument to derive truths about human nature. Wilson, like his
fel-
low Scots, believed truths about man could only be derived
through
empirical investigation.115
From this point, Wilson continues on to describe man’s
psycholo-
gy. He holds that the mind is made up of numerous operations
and
principles that interact with each other. The mind, for Wilson,
con-
tains active and passive principles. Active principles are those
of sen-
sation, imagination, memory, and judgment.116 Among those
active
principles, Wilson calls the senses “the useful and pleasing
ministers
of our higher powers.”117 Even though the senses act as the
ministers
of the higher powers they must still be regulated by temperance
and
prudence in order to not turn into vice and pain.118 He breaks
down
the senses into internal and external senses. External senses are
senses focused on objects outside of ourselves. These
sensations, for
Wilson, are what cause pleasure and virtue in our lives, when
placed

under proper guidance.119 Internal senses, on the other hand,
are
those senses that give us information about what goes on in our
inner
world.120 Consciousness is an internal sense.121 Borrowing
from Reid,
he argues that these inner states are essentially subjective and
gain
their proof primarily from the fact there is a sensor and that that
sen-
sor has accurate phenomenological access to their inner
world.122
The proof that an individual is in pain is because the individual
feels
pain. One cannot, on this picture, prove the existence of an
inner
world sensation through reason and logic as Cartesian
rationalism at-
tempted.123 Wilson uses Descartes’ failures to ground his
argument
115 Id. at 208–09.
116 Id. at 214.
117 Id. at 218.
118 Id.
119 Id. at 216–17.
120 Id. at 219.
121 Id.
122 Id.
123 Id. at 220.

that there exist first principles that are not the product of reason
but
rather that all reason must flow from.124
2. Moral Psychology, Society, and Government
Wilson progresses to apply the insights about man’s mind to
socie-
ty and ultimately the United States’ system of government.
Wilson
begins Of Man, as a Member of Society, again, with a
discussion of psy-
chological egoism much in line with Scottish Enlightenment
philoso-
phy. Wilson advances several pieces of empirical evidence to
discred-
it psychological egoism. The first piece of evidence is that
human
lives are horrid in solitary confinement.125 He also notes that
humans
have social affections that are other-regarding and cannot be
reduced
to mere self interest.126 Humans also have faculties of the
mind that
are social in nature. Testimony, contract, promises, and
language all
do not make sense without social interaction.127 Wilson paints
a pic-
ture of psychological development that places sociality as
coming be-
fore the development of reason.128
For Wilson, the sociability of man is the starting point for
building
the state. Wilson argues that man’s happiness is dependent

upon so-
ciety. He states, “Take away society, and you destroy the basis,
on
which the preservation and happiness of human life are
laid.”129 Es-
sentially, Wilson argues that man in the state of nature is weak.
In
solitude, humans are weak and are surrounded by danger.130
Society
provides individuals aid and remedies for disease and allows for
the
enjoyment of social pleasures innate in the human mind.131
Since
human happiness is accomplished through the interactions with
soci-
ety, the function of society is to produce a system that furthers
the so-
cietal common good such that it makes the individuals within
the sys-
tem maximally happy. Wilson states:
The wisest and most benign constitution of a rational and moral
system is
that, in which the degree of private affection, most useful to the
individ-
ual, is, at the same time, consistent with the greatest interest of
the sys-
tem; and in which the degree of social affection, most useful to
the sys-
124 Id. at 249–50.
125 JAMES WILSON, Of Man, As a Member of Society, in 1
THE WORKS OF JAMES WILSON 258, 254–
55 (James DeWitt Andrews ed., 1895) [hereinafter As a Member

of Society].
126 Id. at 255 (“The love of posterity, of kindred, of country,
and of mankind—all these are
only so many different modifications of [] universal self-
love.”).
127 Id. at 257.
128 Id. at 258–59.
129 Id. at 266.
130 Id. at 265–66.
131 Id. at 266–67.
tem, is, at the same time, productive of the greatest happiness to
the in-
dividual.132
In the Wilsonian picture, this describes man in what he called
natural
society. Natural society is society prior to the imposition of
civil gov-
ernment.133 It is from this natural society where citizens,
standing
equal to each other, form a government to improve their happi-
ness.134 The creation of the union creates a mutual obligation
be-
tween the collective and the individual.135 Since it is citizens
who
come together and form civil government through popular
consent,
these citizens are the sovereign in the Wilsonian conception of
the

state.136 This popular sovereignty serves as the ground for
govern-
ment and the law.
3 On The Extended Federal Republic
Later in the Lectures on Law, Wilson describes four possible
ways
that the United States government could have been established.
The
first way that the state could have been constructed was by
having a
single government; a further possibility was by distinct
unconnected
states; the third possibility was having two or more
confederacies; and
the final possibility was one federal republic.137 Wilson ends
up argu-
ing for the extended federal republic, primarily for practical
reasons.
He argues that one government presiding over an expansive
territory
would require a system of despotism to administrate, while
separate
small states would be subject to war and fall prey to foreign
forces.
Finally, two large confederacies would similarly cause
animosity and
almost as much strife as smaller unconnected states.138 For
Wilson the
extended federal republic has two major advantages. First, it is
large
enough so that it will not be subject to attack or destruction
from for-
eign powers like small commonwealths.139 The federal
republic, next,

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