Whose freedoms are being protected?

Editor's Note: This is the third in a short, occasional series of guest columns by two local constitutional law experts exploring pertinent issues of the day.

Why are South Carolina and 19 other states suing to declare the new federal health care law unconstitutional?

I know they believe the law is bad policy and too expensive, but that's not a constitutional issue, and that's not what their lawsuit is relying on. No, the 20 states say the lawsuit is about individual freedom, states' rights and the 10th Amendment. Specifically, they say the new law infringes on their citizens' individual freedom to choose not to have health care coverage, and it violates states' rights and the 10th Amendment because it interferes with the states' ability to protect that individual freedom.

But whose individual freedom is being protected from health insurance?

We'll use Florida as an example because its numbers are listed in the lawsuit; the other states are similar. Florida has 3.6 million uninsured people living in the state. These people used to be "free" to go without health care coverage, but it's only "freedom" when you have a choice. The only people exercising that freedom were those who could afford to buy insurance but chose not to. And how many of those 3.6 million do we really think that was? And how many people do we know who are clamoring today to go without health insurance?

So what does "states' rights" mean here?

States don't have "rights." People have rights. States have responsibilities. A state's main responsibility is to defend the rights of its citizens, and that responsibility is carried out using the states' "powers" that are recognized in the 10th Amendment. We know that's the purpose of the 10th Amendment because it's part of the Bill of Rights -- an individual guarantee along with freedom of speech and religion, the right to keep and bear arms, and all the other individual liberties in the Bill of Rights. Those individual rights are capped off by the 10th Amendment's statement that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved

to the States respectively, or to the people." Those "powers" of government are there to protect the people, because sometimes we need help securing our rights. The states' powers aren't there for the states; they are there for us.

The principle represented by the shorthand term "states' rights" is critical in a free society, because that's how our freedoms as citizens are protected. Unfortunately, in our nation's history the term states' rights has been abused too often. States' rights was used to defend slavery, and when we got done with that, states' rights was used to shore up Jim Crow. This wasn't just our part of the country either. A century ago, the U.S. Supreme Court held it was unconstitutional for Congress to pass a federal child labor law to keep 9-year-old children out of the cotton mills and coal mines. The Supreme Court said that was a states' rights issue, even though the reason for the federal law was that states weren't protecting their 9-year-olds.

The same is true of Florida and health care today. If Florida had figured out a way for those 3.6 million uninsured people to get medical care, we could complain that the federal government is interfering with Florida's successful efforts for its citizens. But the reason Florida has 3.6 million people without health coverage is that the state hasn't been using its powers to carry out its responsibilities. It dishonors the name of states' rights to defend a "freedom" that 3.6 million people don't have and that the state isn't doing anything about.

I believe fervently in freedom and I worry constantly about the government -- local, state and national -- trying to run our lives. But it's not real freedom these states are protecting when they say they're just sticking up for all those good folks that don't have health insurance and must not want it either.

Nor am I saying that people have a constitutional right to health care (or food, or housing), but if the federal government is trying to provide those benefits, don't invent a states' right to protect us from it.

Oppose health care if you like, but don't oppose it on the backs of the uninsured, and don't tell us that's what "states' rights" means.

Armand Derfner is a civil rights attorney whose arguments before the U.S. Supreme Court helped shape the 1964 Voting Rights Act. He is a constitutional law scholar-in-residence at the Charleston School of Law.