One Size Does Not Fit All

For the purposes of this discussion, I want you to pretend the author of this article is a woman who is 4 feet, 11 inches tall, and weighs 170 pounds.

It's become fashionable recently to do things like fire smokers from their jobs, or propose "sin taxes".

Workplace Smoking Bans:

Weyco banned smokers from its payroll, began testing employees for nicotine and fired four workers who refused to take the test after the policy was enacted in January.

Today, it's smoking.

Tomorrow? Tomorrow, it's legislation to protect people from The Obesity Epidemic. If you're not within the national weight norms for your gender and height, maybe you'll be fined. Or maybe you'll lose your job. And I'll bet you won't get any assistance in helping you lose weight, because this is the Bush Ownership Society. You're On Your Own. But you'll be nicely penalized.

Now, the actuarial tables say that women who are 4 feet, 11 inches tall, should weigh something around 100 lbs.

So, turn and take a look at me. Of course, you can't, because this is the Internet. I'm overweight. But not by 70 lbs. More like 25-30. I'm not obese, though I might fit that formal height/weight definition. I feel good. I exercise every day and I eat a very healthy diet: no processed foods, little/no caffeine, and little/no alcohol. I don't get shortness of breath going up the stairs to my apartment unless something is dragging my metabolism down, like overfatigue or dehydration or something, and I can feel it when it does.

I have an Olympic gymnast's thighs - thicker! - and Tour de France calves. I can leg-press a small to medium-sized car. I have the shoulders of a man. A specific man, actually, my twin, a man who is about a foot taller than me. I measured, once, on a photo of the two of us.

Let's face it, I'm built like a tiny, somewhat curvy, top-heavy, tank. With big knockers.

I'm 4 feet, 11 inches tall. But I don't weigh 100 pounds.

So, according to the actuarial tables, you shouldn't hire me, or insure me, or take any other kind of risk on me. You should fire me or refuse me or fine me, until I meet the national health norm.

A one-size-fits-all law would say I need to lose about 70 lbs to fit a standardized idea of "healthy". A company adhering to one-size-fits-all federal or state guidelines might say to me, "lose 70 lbs or lose your job".

I don't need to lose 70 lbs. 30, max, to get back to my fighting weight, and I mean "fighting" quite literally.

But I'm screwed, because I don't fit "the standard".

Human beings are really standardized only to the extent that we are more-or-less suited for walking upright, have binocular vision, and are bilaterally symmetric (one of each limb on each side of the body, basically).

As for the rest of it - height, weight, muscle mass, fat, metabolic speed - we all vary significantly. The people who are best qualified to aim directives at each of us for the benefit of our health are those who know us as individuals, not statistical groupings or witnesses testifying before Congressional subcommittees. The people who have weighed, poked, prodded, drained, probed, and inspected us, personally, from stem to stern.

You know, our doctors.

Because MY doctor would say, "70 pounds?! You lose seventy pounds, and I'll put you in the hospital on an IV." For some other woman, 70 pounds might be just what the doctor ordered.

But that's the doctor's orders, working directly with a single patient, together, to achieve their best health and welfare.

Not a legislature's orders. Not an employer's orders. Because one size does not fit all.

Want to hear a funny thing?

All this time, I've been talking about abortion.

When a legislature promulgates a rule saying that women may only have abortions under specific conditions, no matter how hard they try, they will leave out case-by-case situations where they themselves would, if fully apprised of the circumstances, dash tears from their eyes and say, "yes, you should abort". They'll leave those out because you can't imagine every single variation on a theme.

It's One Size Fits All.

But One Size can never Fit All women across the United States. Because we're all different. Each one of us lives in a different economic situation, with different health needs or medical problems, different levels of social and familial support, different stressors, different risks, different advantages. We're all different. Not standard. You cannot foresee every single situation.

So, instead of putting the power to determine who does or does not have an abortion in the hands of the people most removed from the specific circumstances, and therefore least-qualified to decide whether you should have one, why not keep that power in the hands of those in the field? On the ground. In the trenches. The ones with the test results and medical history right in front of them. You know, doctors and their patients.

Calling back Guards?

I read somewhere a couple weeks ago that a bunch of cities/townships in Vermont had moved to bring their Guard units currently in Iraq home. And it occurred to me to ask if this were a binding resolution, would it be enforceable?

(Wait, I found a 'somewhere'. Here. Read this. 57 communities pondered some form of this resolution, and 48 passed it, 3 voted it down, one tied, and the other 4 tabled it for later.)

The resolution, as introduced, calls for the Vermont Legislature to study the effect of National Guard deployments on the state; implores the state's congressional delegation to work to restore a "proper balance" between state and federal control of the Guard; and asks Congress and the administration of President Bush to withdraw U.S. forces from Iraq at a quick but "humanitarian" pace.

So, the bulk of Vermont has just passed a nonbinding resolution that their Guard units should come home. What happens if, say, tomorrow, they pass a binding resolution? I guess the real question is, does a state still have control over its Guard units, when they've been called up for Federal service? Note that I'm assuming the state has some control over its Guard units at all.

Well, OK. Let's address the latter note first. Article 1, Section 8, clauses 15 and 16 of the Constitution talk about providing "for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;" and providing "for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States..."

(Now, to back up an even further step: State and National Guardsmen are not Navy, not Army (the two types of forces explicitly mentioned in the Constitution). They must be something. Therefore, militia.)

If the Congress has to "call forth" the militia, and provide for organizing, arming, and disciplining the part of the militia employed in the service of the US, then when the militia or a part of it has not been called forth, that militia must be in the service of the State, not the United States.

Otherwise, there wouldn't be any calling forth to begin with, because the Guard has to be under some authority, somewhere.

What isn't clear from the Constitution is whether a State can simply demand its Guard back. I doubt, structurally, that it could.

If the Militia has been called forth into federal service (service of the United States rather than service of its own State), they're placed under the command of the Executive branch in the Executive's role as Commander in Chief of the Armed Forces. ("The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..." Const. Art. II, §2, cl. 1.)

The President can't make use of these forces as forces - strategically and tactically - if a State were permitted to reclaim them without the Executive's permission or at least acknowledgement. To do so would diminish the Executive's authority on the battlefield, by permitting another authority to supersede his in the direction of troop movements, which directly contradicts the Constitutional delegation of power to the President as Commander in Chief.

Furthermore, the Congress has the authority to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" -- a list of powers which included the power of calling up and providing for militias in US service. Const. Art. I, §8, cl. 18. The power to call up, to hold, should also include the power to release, should it not?

However, there's another problem. What if the Militia's use is unConstitutional?

Art. I, §8, cl. 15 lists the tasks for which the Militia may be called up: to "execute the Laws of the Union, suppress Insurrections and repel Invasions". Is invading and occupying another country on that list? Is that list exclusive? (Expressio unias est exclusio alterius. Specifying one is to the exclusion of others.) And even if that list is not comprehensive, all three elements are of a domestic nature - internal regulation, policing, and defense from physical invasion by an enemy. All tasks for which you need to be here, in the US, to perform. Deployment on the other side of the world in a war against and occupation of another country certainly sounds like foreign, not domestic affairs.

So, I am not at all certain that even if this list of jobs for the Militia is just a starting point, that non-domestic tasks should be included.