The Unconstitutionality of Fat
by Hillel Schwartz

For a very long time and not so very long ago, fat was thought to be constitutional. I am not referring here to any legal or legislative texts but to a medical tradition. Since at least the time of classical Greek and Confucian physicians, people have been thought to have "constitutions," which have been variously defined but have always been related to physique, energy level, appetite, carriage, and demeanor. Ones constitution was not ones invariable fate, but it did predispose one to a certain body type, style of movement, and emotional life. The constitutions of some people, without blame and mostly without prejudice, naturally predisposed them to a rounded or fat body.

Then, in the middle of the 19th century, about the same time that most of the "Revolutions" of 1848/49 were defeated or suppressed, constitutions began to lose their appeal--at least to physicians, pathologists, biochemists, and biologists, all of whom were unsatisfied with a system of "diatheses" (dispositions) that seemed far more descriptive than explanatory. Observing that a fat person was predisposed to fat was hardly an analytic or experimental insight; indeed, it was mostly hindsight, and allowed for little if any purposive, interventionist foresight. For the progressive scientistic mind, constitutions were at once fatalistic and fraught with the theological conundrums of Free Will. To the same degree that a person was morally a free agent, a person was also free to assume any body shape s/he might desire, but to the extent that a person might be predestined to moral corruption s/he might also be constitutionally predisposed to thinness, or lethargy, or roundness, or fatness.

One would suppose that once Mendelian genetics were understood and adopted, some notion of a "constitution" might return. But this did not happen in 1900, when Mendel's work was discovered and republished. By the start of the 20th century, physicians had at hand a number of new diagnostic tools, surgical and sterile techniques, public health practices, pharmaceuticals, and life insurance statistics sufficient to give them confidence that they could help anyone escape the morbid parts of what patients continued to call their "constitution." Moreover, to harp upon ones "constitution" was to call into question the powers of modern medicine and the virtues of modernity, whose central principle was that things--and people--could change and improve.

The fierceness of this medical attitude was understandable. Otherwise how could physicians face a hundred years worth of failures in dealing with tuberculosis, the premiere "diathesis" around which 19th-century novelists, poets, artists, and musicians had built stories, paintings, and operas? The 20th-century physician would have no truck with acute or inevitably fatal illnesses attributed simply, and sadly, to some vaguely "constitutional" problem.

On the other hand, fat people (unlike the tubercular, the jaundiced, and perhaps the diabetic) seemed to resist the treatments, and sometimes the offers of treatment, from physicians. If such people were not constitutionally fated to be fat, perhaps they were constitutionally obstinate.... which obstinacy drove a number of physicians to seek out deep-rooted psychological or psychiatric causes for the retention of a level of fatness thought to be unnecessary and life-threatening.

Over the last fifty years, as fatness has come to seem increasingly criminal, more data has shown that there are indeed genetic components to the make-up of obese individuals, but still, as with the "constitution," so with the genetic fatedness of fat, physicians and medical ethicists tend to argue that the actual expression of a genetic feature or trait is itself determined by much more than our strings of DNA and RNA. We do not become what our genes say we must become; rather, we become what our environment, our food and water, our sunlight and our air pollution allow us to become, within ranges fixed by genetic inheritance and composition. And physicians, lab technicians, and pharmaceutical companies advertise their ability to help us shape the expression of our genes. Especially for fat people, whose appetites establish the degree to which their bodies express a putative gene for fatness, and whose attitudes shape their bodies.

Fat may therefore be considered unconstitutional in two very different senses. First sense: a fat person can no longer hide behind the excuse of a constitution to explain poundage, flab, or roundedness. Second sense: the public presence of a fat person is seen to violate the rights of others; in much the same manner as secondhand smoke reaches everywhere and endangers everyone, so fat intrudes and upsets and becomes, eventually, a public and tax burden. There might even be a third sense: a fat person appears to enjoy no constitutional right against self-incrimination, but must answer to everyone (strangers on the street, secret accusers in elevators and coach seats in airplanes) in self-defense, guilty until proven slightly less guilty (more diet-successful).

Would it behoove the fat acceptance movement to argue against these suppositions of the unconstitutionality of fat by reclaiming the diathetic or genetic grounding of fat, so pushing "constitutionality" to the forefront, as some readers and activists might be inclined to do?

I am not sure. Consider this related, important, and curiously unaddressed question: if fatness is a crime, what kind of crime is it? For the sake of the pun, I could easily write several paragraphs on fat as a mis-demeanor: fat people do not look right, do not carry themselves gracefully, do not eat delicately, and are outwardly cheerful but inwardly sad. However, I have written at some length on this subject and besides, given the vehemence of current campaigns against fatness and fat people, it would be unconvincing to let the case rest with a plain or figurative misdemeanor. Fatness, then, must be posited as a felony--as felo de se, a felony against oneself, that is, suicide. Although one may earnestly debate the philosophical, criminological, and ethical systems by which suicide has come to be designated a crime (against the self and, by strange extension, the state), clearly the "warriors" on fatness have wrapped about themselves the same mantle of moral outrage as "warriors" on drugs and drunk-driving, acts which are presumed to be (and rightly so) suicidal. Yet unlike those guilty of selling drugs or driving drunk, the fat person is guilty of no specific action but merely of maintaining a profile that is taken as proof positive of a felony against oneself and the state. We know from many studies that few fat people are gluttons or eat gluttonously, and we know from other studies that trying repeatedly to reduce may be more dangerous to a fat person than many levels of "medical obesity," but the implicit assumption in our society remains that fatness may be feb de se because fat people actively participate in their own early demise.

And as a felony, fatness may be at once a crime of passion and a crime of dispassion. A crime of passion, because it has to do with being chronically unable to stop oneself, and a crime of dispassion, because it has to do with eating without tasting, or moving without feeling, or living without awareness. The former, a crime of passion, is more exculpable than the latter, but passionate or dispassionate, fatness surely stands accused of a far greater crime than a mis-demeanor.

Felons, as we all know, lose their right to vote and their right to liberty. As felons, fat people may be denied their rights as well, especially if fatness itself is depicted as unconstitutional in the senses of the word as delineated above.

Would it help, therefore, to reclaim the constitutionality of fat? Nowhere near as much as working to reduce fatness from a felony to a mis-demeanor, then from a mis-demeanor to an idiosyncrasy, then to a thing of no interest whatsoever, a legal irrelevance.

These are harsh unwelcome words at a time when fat acceptance strategy is to endorse, embrace, and distinguish fatness and to fight on every side against discrimination. Nonetheless, it may be necessary to rethink this strategy before fat people, as untried but sentenced felons, find themselves denied the right to any public voice whatsoever. ß

Dr. Hillel Schwartz is a cultural historian living and writing in Encinitas, California. His book "'Never Satisfied--A Cultural History of Diets, Fantasies and Fat" is regarded as a milestone in the size acceptance movement. He can be reached at