Against First Principles

Larry Alexander\u27s invitation to participate in this Symposium suggested that our articles should focus on the broader questions of individual liberty, equality and responsibility raised by [Richard] Epstein\u27s book [Forbidden Grounds). Having accepted the invitation I do not want to deviate from Larry\u27s instructions. Nevertheless, my discussion of these broader principles proceeds in a somewhat backhanded fashion. My basic argument is that the broad principles that underlie most such discussions can get us only so far in our analysis of appropriate public policy. Indeed, I want to argue that they often get in the way of sensible policy analysis and that we should be prepared to throw them overboard rather quickly when encountering heavy philosophical or political weather. This claim might seem quite odd in the antidiscrimination context - an arena often inhabited by claims of fundamental rights to equality or basic fairness. Nevertheless, I think Richard Epstein\u27s book is a good example of the difficulty of developing plausible policy prescriptions while engaging in an argument from first principles