Honorable mention (also) goes to Murray N. Rothbard for “The Tyranny of the Bench” :... Here, we must point to a vital distinction that lies at the heart of economic science: between "scarcity" and a "shortage." Not only are all forms of energy scarce, but all goods and services, without exception, are scarce as well. That is, people could always use more of them if available. We have always lived in a world of scarcity for all goods, and we always will, short of the Garden of Eden; economic development over the centuries has consisted in making goods relatively less scarce than heretofore. The test of whether or not any good or service is scarce is very simple: is its price greater than zero? If it is, then it is scarce. Happily, air is not scarce, and so its price on the market is zero (although this is not true of conditioned air.)
Everything else is scarce. How, then, are these universally scarce supplies to be allocated, to be "rationed"? In the free market, such "rationing" is done, smoothly and harmoniously, by the free price system. The price of any good on the market equates its available supply with the demand for it — with the amount that consumers are willing to purchase at the market price. The free market smoothly adjusts to differences in relative scarcity. Suppose, for example, that a frost kills much of the orange crop, and the supply of oranges on the market is reduced. The free market price then rises to equate supply and demand. There is no need for anyone, least of all government, to order everyone to "conserve" their purchases of oranges because supply has been reduced.
Each individual does whatever "conserving," whatever belt-tightening of oranges, that he wishes in accordance with his own values and preferences. If he is an orange enthusiast, he will buy only a bit less or as many oranges as before; but if he is only marginally interested in oranges, he will buy far less, and perhaps shift to grapefruit. The opposite will happen when the orange crop increases, as prices fall to equate supply and demand, and different individuals will vary in the greater number of oranges that they will buy. There will be no need for anyone to issue orders commanding a loosening of the belt. The smooth working of market prices means something else. It means that, regardless of how scarce a product might be, there will never be any "shortage" of the product, that is, there will never be a situation where buyers will not be able to find the product at the market price. There can never be a shortage of any product on the free market, of energy or of anything else.
But we all know that shortages of goods have arisen. How, then, could such a thing happen? Simply, shortages always appear if the free market is prevented from working, in particular, if the coercive agency of government forces prices below the free-market price. If government orders the price of anything below the free-market price, the quantity people wish to buy will exceed the quantity available, and the goods will become hard to find. The bigger the gap between controlled price and free-market price, the bigger the shortage. Thus, shortages are anywhere and everywhere creatures of government; government can achieve as much of a shortage of anything as it wishes.
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When a shortage of a good is created by government price control, several things happen. First, the price system is prevented from performing its rationing function; therefore, something must take its place. Usually, it will be the government, the creator of the shortage in the first place, which will step in with a great parade of righteousness to announce that free enterprise has failed in this instance, and that it must step in to assure fair shares for all. In short, the government sets up compulsory allocations, a compulsory divvying up of the short supply. Despotism arrives, as the belt-tightening is no longer left to the preferences of each individual; all must suffer alike in a meat-axe approach, in the name of "fairness." Tyranny over the public has replaced individual freedom and choice. And, to make matters still worse, a second thing happens: the supply produced on the market dries up (who will make new Cadillacs to sell for $200?) after which the government will try to increase supply by further compulsion.
Pledged to preside over the rule of law, law that is supposed to apply to everyman, the judges themselves are yet above the law and free from its sanctions and limitations. When clothed in the robes of his office, the judge can do no legal wrong and is therefore immune from the law itself.
There is a crucial catch-22 in this grisly situation. For if anyone would like to argue against this arrangement, he can do so — in our archist system — only before judges who themselves are part of the problem rather than part of the solution. It is up to government judges to rule on whether government judges are immune from the law. How do you think they would decide? ...
Not surprisingly, the United States Supreme Court ruled, in 1872, that judges were immune from any damage suits for any "judicial acts" that they had performed — regardless of how wrong, evil, or unconstitutional those acts may have been. When clothed in judicial authority, judges can do no wrong. Period. ...
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... In a 5-3 decision in this illuminating case of Stump v. Sparkman, Justice Byron R. ("Whizzer") White, speaking for the majority, sternly reminded the appellate court of the meaning of the 1872 ruling: "A judge will not be deprived of immunity because the action he took was in error, was done maliciously or was in excess of his authority. Rather, he will be subject to liability only when he has acted in the 'clear absence of all jurisdiction.'"
Justice White conceded that no state law or court ruling anywhere could be said to have authorized Judge Stump's action; but the important point, he went on, is that there was no statute or ruling which prohibited such an action by the judge. Therefore, even though Stump had approved the sterilization order without legal authorization, without holding a hearing, without notice to the child, or without her being represented by a lawyer or guardian, it was still a "judicial act" and therefore beyond the law.
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White and his allies were (1) simply being thick as judges, guildsmen defending their guild privileges; and (2) were defending the very cornerstone of our archist system: the immunity from the law of the ultimate decision makers.
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