Friday, November 16, 2012

Extraordinary BS

A federal appeals court overturned a Michigan amendment banning affirmative action. Their reasoning, paraphrased in the Washington Post, is as follows:

In an 8-7 decision, the court said the 2006 amendment to the Michigan Constitution is illegal because it presents an extraordinary burden to opponents who would have to mount their own long, expensive campaign through the ballot box to protect affirmative action.

By this reasoning, wouldn't any amendment or even any legislation be unconstitutional because of the same "burden?"

Forget for the moment your partisan views on affirmative action or any other legal issue. If you are on the losing side of any legislative change, you can argue, quite compellingly, that you are now faced with an "extraordinary burden" in your attempt to reverse a legitimate decision made by voters, and as such, the legislation is therefor unconstitutional. 

Was Scott Walker's initial election "illegal" because of the "extraordinary burden" it placed on those wishing to recall him? Are the recent gains made by gay marriage advocates or pot smokers unconstitutional by that standard? 


Sean Cranley said...

I have to say Denis, although I support affirmative action as a way to try to make up for generation upon generations of slavery, oppression and officially sanctioned discrimination, I'm not able to wrap my mind around that perticular reasoning either.

Anonymous said...

This is total BS. It is getting to the point that either the spinners are less competent or those in charge don't feel like they have to make any effort. Get ready for more and more "just do it because I said so".

Anonymous said...

Maybe I'm becoming a Sean Cranley by posting then posting again but I thought of something new. I guess that means I'm not Sean.

This is almost the same argument used by the federal court that reversed the federal court that overturned the decision in Association for Molecular Pathology et al v. USPTO et al that ultimately said that Myriad Genetics could patent two human "breast cancer genes". As an aside, I provided advice to the ACLU in this case.

Myriad has a patent on their diagnostic test, and I obviously have no issue with patents as long as they are fair. You can patent a design, a process, a piece of code, etc., but one thing you cannot patent is something that exists in nature. Human genes exist in nature but they are often broken up by insertions of non-coding sections of DNA called introns. The exons can be pulled out and stitched together to form what is called a cDNA. This is now the gene without the insertions and us useful in a lab. It contains NO NEW INFORMATION than the native form of the gene.

Myriad argued - successfully- that this cDNA does not exist in nature (true) and that they deserve a patent in essence because the cDNA was difficult to make. I and others argued that construction of the cDNA was unnecessary and the resulting argument that Myriad deserved a patent because it was was "a burden" was bullshit. Their lawyers were better than ours but we're not done.

Just because something is "a burden" should not remove it from challenge.

Sean Cranley said...

Well, I guess I can't even agree with the host of this blog without being the target of a gratuitous attack by Ano. What else should I expect form an . . . Ano.

By the way Ano, I agree with you about pattenting genes, but you'll never know it because your too fearful to read my comments.