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Reading Morton J. Horowitz's "The Transformation of American Law, 1780-1860" and chuckled at this (correct) observation that the term "reasonable" in the common law is usually a signal to "insert judge's personal policy preferences here".

"Yet, by acknowledging that the utilitarian criterion of valuable use was the ultimate source of legal rules, Story's reasonable use standard became almost immediately an open-ended formula through which common law judges could implement their own conceptions of desirable social policy. As a result, Tyler v. Wilkinson is cited more often during the second quarter of the nineteenth century to support than to condemn the reasonableness of a mill's interference with the flow of water."

020

Augustine at his least persuasive when he is just like "Obviously Jesus was needed to solve this." Had Jesus even been born yet when this happened? Had this guy even heard of Jesus? How would it be obvious? Amateur Hour at the Apologetics Cafe.

"Among the virtuous and wonderful deeds of the gods is recorded the following. Titus Latinius, a Roman farmer and the head of a family, was told in a dream that he should announce to the Senate that the Roman games must be repeated. This was because, on the first day of the games, it had been ordered that a certain criminal was to be led to his execution in the sight of the people. This grim spectacle had displeased the gods, who were, of course, seeking amusement from the games. But when he who had been warned in the dream did not dare to obey the command on the following day, the same command was repeated with greater severity during the next night. Then, because he still did not act, he lost his son. On the third night, the man was told that a still greater punishment was in store for him if he did not act; and when, even then, he did not dare to do so, he fell prey to a bitter and loathsome disease. Then, however, on the advice of his friends, he reported the affair to the magistrates. He was borne into the Senate on a litter and, having told his dream, recovered his health forthwith, and went away whole on his own feet. Astonished by so great a miracle, the Senate voted to repeat the games at four times the original cost. ..."

"Who of sound mind does not see that, in this case, in submission to the will of malignant demons from whose dominion nothing releases us save the grace of God through Jesus Christ, men were compelled by force to exhibit to the gods plays which right judg-ment should have declared shameful? In these plays, indeed, the crimes of the gods are celebrated in poetic form; yet the games were repeated by order of the Senate because the divine beings required it. In these games, the vilest actors would sing and act out the part of Jupiter as the corruptor of modesty - and thus please him! If that was a fiction, he should have been angered; but if he was pleased by the portrayal of his crimes even though fictitious, who but a devil was served when he was worshipped? Could the Roman empire have been founded, extended and preserved as it was by such a god, who is more abject than any Roman man whatsoever who was displeased by such spectacles? Could he give felicity, who was so infelicitously worshipped, and who was still more infelicitously angered if he was not so worshipped?"

030

For Augustine all the good pagan gods are just surrogates for the goods offered by the true God (namely, Augustine's).

"If Felicity is not a goddess, however, but - and this is the truth -a gift of God, then let men seek that God Who is truly able to give them felicity. Let them relinquish the poisonous multitude of false gods to which the vain multitude of stupid men resort: men who, because they make the gifts of God into gods themselves, offend Him Whose gifts they are by the obstinacy of their proud will. For..."

"... a man cannot escape infelicity if he worships Felicity as a goddess and forsakes the God who is the giver of felicity, just as he cannot escape hunger if he licks a picture of a loaf instead of asking for a real one from someone who has it."

100

Augustine talking about how the Romans could have stuck with the goddesses of Virtue and Felicity and obtained everything they needed. I am wondering if he will tie a lack of restraint in worshipping divinities with lack of restraint in imperial acquisition.

"It was not truth that made these virtues into goddesses, but vanity. For they are gifts of the true God, not goddesses themselves. But where there is virtue and felicity, why seek for anything more? What could satisfy the man for whom virtue and felicity are not enough? For virtue encompasses everything we should do, and felicity everything we should desire. If Jupiter was worshipped so that he might grant these things - for if extent and duration of rule are good things, they belong to this same felicity - then why is it not understood that they are not goddesses, but gifts of God? Even if they are deemed to be goddesses, however, there is at least no need to seek so great a swarm of other gods. For let our adversaries reflect upon the offices of all the gods and goddesses which they have chosen to invent according to their own opinion; and let them discover, if they can, some further good which could be bestowed on any man possessing virtue and possessing felicity. What doctrine would he need to seek from Mercury or Minerva, since Virtue would already include everything in herself? Indeed, virtue was described by the men of old as the art of living well and rightly. Hence, they considered that it was from the Greek word aretê, which means 'virtue', that the Latin-speaking peoples derived the word 'art'. Even if virtue can only come to the clever, however, what need was there of the god called Father Catius to make men catos, that is, shrewd, when Felicity could confer this gift herself?"

100

Augustine riffing on the idea of various gods the Romans should actually worship to ensure success is pretty fun.

"He prays ill, therefore, who desires to have someone to hate or fear in order to have someone to conquer. If, then, it was by waging wars that were just, and not impious or unrighteous, that the Romans were able to acquire so great an empire, should they not worship even Foreign Iniquity as a goddess? For we see that Foreign Iniquity has contributed much to the increase in the breadth of the empire, by making foreigners so unjust that they become peoples against whom just wars may be waged and the empire thereby enlarged. And why may not Iniquity at least that of foreign nations be a goddess, if Fear and Dread and Fever have deserved to be Roman gods?"

101

Augustine thinks pantheism is silly because that means when you kill an animal you are killing part of God and I gotta say this seems like a bullet many pantheists would easily bite.

"They say also that this God is a kind of bosom of nature containing all things in Him-self, so that from His soul, by which the whole mass of the world is quickened, the lives and souls of all living things are derived, each according to the manner of its birth. On this view, then, nothing at all remains which is not a part of God. If all this is so, however, who does not see what impious and irreligious consequences follow? Whenever anyone tramples on something, he tramples on a part of God! Whenever any animal is killed, a part of God is slaughtered! And I decline to speak of all those things which may occur to anyone who gives the matter some thought but which cannot be named without shame."

Augustine, in classic form, is like "gonna stop listing off all these gods" and five pages later is still listing them.

"Thus, let our adversaries make whatever assertions they please in their reasonings concerning the natural order. On one account, let Jupiter be the soul of this corporeal world, who fills and moves that whole mass¹¹ which is built and compacted out of the four elements, or as many elements as they like. On another, let him grant parts of it to his sister and brothers. On another again, let him be the aether, so that he may embrace Juno, the air, spread out beneath him. Then again, let him be the whole heaven, including the air, and let him impregnate with fertile showers and seeds the earth which is at one and the same time his wife and his mother (for such a thing is not thought disgusting among the divine beings). Or again (not that it is necessary to dwell upon all the possibilities), let him be the one god of whom many think that the noblest of all the poets speaks when he says: 'For God passes through all things: all lands, and the tracts of the sea, and the depths of the heavens. Let him be Jupiter in the aether; Juno in the air; Neptune in the sea, and also Salacia in the lower parts of the sea. Let him be Pluto in the earth; Proserpine in the lower parts of the earth; Vesta in the dom-estic hearth; Vulcan in the blacksmith's forge; the sun and moon and stars among the heavenly bodies; Apollo among diviners; Mer-cury among the merchants. Let him be Janus the opener and Ter-minus the closer. Let him be Saturn in time; Mars and Bellona in war; Liber in the vineyards; Ceres in the cornfields; Diana in the forests; Minerva in learning. Finally, let him be in the horde of plebeian gods, so to speak. Under the name of Liber, let him preside over the seed of men, and, as Libera, over that of women. Let him be Diespater, who brings the newly born forth into the light of day [qui partum perducat ad diem]. Let him be Mena, whom they set over the menstruation of women; Lucina, who is invoked by women..."

"... in childbirth; let him bring help to the newly born by receiving them into the bosom of the earth, and in this capacity let him be called Ops. Let him open their mouths to wail, and be called the god Vaticanus; let him lift them up [levare] from the earth and be called the goddess Levana; let him protect their cradles and be called Cunina. Let it be none other than he who is made manifest in those goddesses who sing the fates of the newly born and are called Carmentes. Let him preside over fortuitous events and be called Fortuna. Let him, as the goddess Rumina, bring milk out of the breast for the infant, because the ancients called the breast ruma. As the goddess Potina, let him furnish drink; and, as the goddess Educa, let him bring food. From the fear [pavor] of infants, let him be called Paventia; from the coming of hope, Veni-lia; from pleasure, Volupia; from action, Agenoria. From the stimulants which excite a man to much action, let him be called the goddess Stimula. Let him be the goddess Strenia, from making men vigorous; Numeria, from teaching to count; Camena, from teaching to sing. Let him also be the god Consus, from bringing counsel, and the goddess Sentia, from inspiring opinions [sententiae]. Let him be the goddess Juventas, who, after the robe of boy-hood is laid aside, takes charge of the beginning of young manhood; and let him also be Fortuna Barbata, who provides adults with a beard. (For some reason, the Romans refuse to honour this deity by making it a male god called Barbatus from barba, as Nodotus is so called from nodus. Since he has whiskers, they could at least have called him Fortunius and not Fortuna!) [It just keeps going on like this, I will spare you]

210

Adam S. Rust @asrust.bsky.social · 01/02/2026

Augustine analyzing the absurdity of attributing Roman greatness to the pagan gods because it is impossible to figure out which ones are particularly responsible for Roman greatness. "I do not mention them all; for, though our adversaries are not abashed by all this, it bores me."

"I do not mention them all; for, though our adversaries are not abashed by all this, it bores me. I have, however, said these few things in order to make it understood that the Romans certainly do not venture to assert that it was these deities who established, increased and preserved their empire. For each of these deities was so busy with his own duties that no one thing was ascribed as a whole to any one of them. How could Segetia care for the empire when she was not allowed to take care of the corn and the trees at the same time? How could Cunina think of arms when she was not permitted to go beyond the care of the little ones? How could Nodotus help in war when he was concerned, not even with the sheath of the ear, but only with the nodes of the joints? Everyone has a single doorkeeper for his house, and, because this doorkeeper is a man, he is quite sufficient. But the Romans have set three gods there: Forculus for the doors [fores], Cardea for the hinges [car-dines], and Limentinus for the threshold [limen]! Forculus, then, was not able to guard the door, hinges and threshold all at once!"

100

Augustine putting slave revolts on equal status footing with Roman imperial armies is pretty fun.

"I say this, however: that the Roman empire itself, which had already grown great by subjugating many peoples, and which was an object of terror to the rest, was itself bitterly injured, gravely alarmed, and with no small effort avoided a disastrous reversal, when a very small number of gladiators, fleeing from the games in Campania, assembled a large army, appointed three generals, and laid waste the whole breadth of Italy with the utmost cruelty. Let our adversaries tell us what gods helped those men to rise from a small and inconsiderable band of robbers to a kingdom that the Romans, for all their great forces and fortresses, were obliged to fear. Or will they deny that the gladiators received divine assistance because they did not remain in power for long?"

Adam S. Rust @asrust.bsky.social · 31/01/2026

Auguie observing the oddness of the Romans setting up a temple to Concord, a goddess that failed them, to commemorate the civil tumult of the Gracchi era. Why not a temple to temper the wrath of Discord, the likely divine cause of the tumult? After all, says Augie, the Romans have a temple to Fever.

"It was truly a gracious decree of the Senate by which a temple of Concord was built on that very spot where the dreadful tumult had occurred and where so many citizens of all ranks had fallen. This was done so that a testimony to the punishment of the Gracchi might strike the eye and stir the memory of all who addressed the assembly. But what else was it than a mockery of the gods to construct a temple to that goddess who, had she been in the city at all, would surely not have suffered herself to be torn by such great dissension? (Although it may be, of course, that Concord herself was to blame for this crime, because she had abandoned the minds of the citizens; in which case she deserved to be locked up in that temple as though it were a prison.)

Why, then, if they wanted the temple to be in harmony with recorded fact, did the Senate not erect there a temple to Discord instead? Can any reason be given why Concord should be regarded as a goddess and Discord not? Why should we not regard both as..."

"... goddesses, but the one as good and the other bad, according to the distinction of Labeo?75 His reason for making this distinction seems to have been, quite simply, that he noticed in Rome one temple dedicated to Fever and another to Health. By the same token, therefore, a temple should have been established not only to Concord, but to Discord also.

It was, indeed, to their peril that the Romans chose to live under the anger of so wicked a goddess by omitting to build her a temple. They did not remember that the destruction of Troy had its origin in the resentment of Discord. For when she was not invited with the other gods to the wedding of Peleus and Thetis, she created discord between the three goddesses by placing a golden apple before them. From this arose the quarrel of the deities, the victory of Venus, the abduction of Helen and the destruction of Troy. Perhaps, then, she was already indignant that, of all the gods, she had not been thought worthy of a temple in the city of Rome, and had therefore caused the city to be disturbed with such great tumults. How much more sorely provoked would she have been, then, when she saw erected, in the place where the slaughter had taken place -in the place, that is, of her own handiwork - a temple to her rival!"

100

Reading Augustine making me reflect on the bankruptcy of the evangelical "theology" I grew up with. The theology, such as it was, almost entirely amounted to question begging defenses of biblical inerrancy and literalism. Lee Strobel contributed more to my loss of faith than any New Atheist writer.

The cover of Lee Strobel's "The Case for Christ", which made your humble skeeter doubt the truth of evangelical Christianity more than any New Atheist book of the early 2000s.

130

Augustine making the clearest statement so far about how history thwarts any attempt to create a logically coherent transactional model of pagan worship. (I am a big fan of the rhetorical move "here is how you could save this" and offering a premise the conversation partner cannot accept.)

"These objections of ours would be to no purpose if our adversaries replied that their sacred images were set up not to secure temporal goods, but as symbols of the eternal. In that case, they could say that even though corporeal and visible things had happened to perish, no harm had been done to those things for the sake of which they had been set up, and that fresh provision could be made for the same purpose. In fact, however, so wonderful is their blindness, they suppose that a city's earthly safety and temporal felicity can be kept from perishing by sacred objects which can perish themselves! And so, when it is shown that they suffered the erosion of their safety or the invasion of ill fortune even while these sacred objects endured, they can only blush at an opinion that they are unwilling to change yet unable to defend."

120

"243 years of death for only 20 miles of new territory" isn't even World War I stats.

100

Augustine analyzing Cicero (who lived over 600 years after the events recounted) as if he is a contemporary or near-contmeorary source for the events recounted really revealing the chasm between classical historiography and our own.

"Again, speaking of Tullus Hostilius, who was the third king of Rome and who was himself destroyed by lightning, Cicero says in the same book that he was not believed to have been received among the gods even though he died as he did. 38 Perhaps, Cicero suggests, this was because the Romans did not wish to have what they agreed or believed in the case of Romulus to be made vulgar or commonplace, as it would have been if it had been readily attributed to another also. Again, in one of his invectives Cicero says clearly, 'Romulus, who founded this city, we have raised up to the immortal gods by our goodwill and renown.' This suggests that Romulus's elevation did not truly occur, but was a polite fiction devised and published in recognition of his virtues. In the dialogue Hortensius, moreover, while speaking of regular eclipses of the sun, Cicero says that they 'produce the same darkness that was produced at the time of Romulus's death, which occurred when the sun was hidden'. Here, certainly, he does not in the least shrink from speaking of the man's 'death', for he is engaged in discussion rather than praise."

100

Augustine at his least persuasive when he is like "your gods' divine signs are just nature whereas my god's divine signs are really real."

"How, moreover, did the kings themselves meet their ends? A flattering fable says of Romulus that he was caught up and received into heaven. Some Roman authors, however, say that he was hacked to pieces by the Senate for his ferocity.35 The story is that a certain Julius Proculus was suborned to say that Romulus had appeared to him and, through him, commanded the Roman people to worship him as one of the divine beings. In this way, it is said, the people, who had begun to swell with anger against the Senate, were suppressed and calmed. For an eclipse of the sun had also occurred, and the ignorant multitude, not knowing that this happens according to the determinate laws of the sun's own movement, attributed it to the merits of Romulus. But this withdrawal of the sun's light -this indication of the sun's grief - should surely rather have been interpreted as a sign that Romulus had been murdered! Indeed, a similar sign appeared when the Lord was crucified by the cruel and impious Jews. 36 But that this latter concealment of the sun did not come about through the natural movement of the heavenly bodies is sufficiently shown by the fact that it took place during the Pass-over of the Jews. For this festival is held at full moon, whereas eclipses of the sun normally happen only at the last quarter of the moon."

100

Adam S. Rust @asrust.bsky.social · 28/01/2026

"Would you enjoy this historical event you valorize as a gladiator fight?" is a real Rome specific intuition pump.

"Away, then, with concealments and deceitful whitewashings! Let these things be examined openly. Let no one tell me that this man or that man was great because he fought with some man or another and conquered him. Gladiators also fight, and they also conquer. This cruelty, too, has its reward of praise (although it would, I think, be better to pay the penalty for any amount of slothfulness than to seek glory in such feats of arms). But if two gladiators were to enter the arena to fight, one a son and the other his father, who could endure such a spectacle? Who would not shun it? How, then, could the clash of arms between two cities be glorious when one of the cities was a mother and the other her daughter? Did it make a difference that there was no arena, and that broader battlefields..."

"... were filled with the bodies, not of two gladiators, but of multitudes belonging to two peoples? Did it matter that those struggles were encircled, not by an amphitheatre, but by the whole world? Did it matter that they furnished an ungodly spectacle both to those then alive and, for as long as their fame is handed down, to their posterity also?

The gods who presided over the Roman empire were like theatrical spectators at these struggles. They remained quite unmoved when the sister of the Horatii was added by her own brother's sword to the two brothers slain. They were not moved when she became a third victim on the other side: a victim to match the three slain Curiatii, so that Rome, even though she was the conqueror, might sustain no fewer deaths than the conquered"

120

Great thread on Ilan Wurman's latest Originalist foray into constitutional naturalization law. Really amazing how I can only slightly alter a passage I wrote on Wurman in 2019 and it still applies in 2026.

"But maybe there is no argument, maybe Wurman prefers a narrow reading of ["subject to the jurisdiction thereof"] because he likes the outcome that results, and he likes a broader reading of the Cruel and Unusual clause because he likes those outcomes. These may be his preferences, but Wurman will have to argue these preferences on the merits; the hermeneutic albatross of Originalism he presents does not help him. It certainly will not help judges, unless the goal is to obscure their present political desires behind the hypothetical reasonable person from the 18th century."

040

Adam S. Rust @asrust.bsky.social · 28/01/2026

Augie's args against pagan gods (some of which come close to being arguments against any divine order at all) reminding me of "Religion and the Decline of Magic" (a book I have only partially read) that argues that the early modern Church's war on magic laid the ground work for secularism.

Cover of "Religion and the Decline of Magic" by Keith Thomas. The dark orange cover shows a demon getting some voodoo doll type things from people in monk robes while demon dragons fly overhead. No academic cover has a right to go this hard.

130

Adam S. Rust @asrust.bsky.social · 28/01/2026

Augustine making the argument "an empire with this many gods should not have had so many problems" is a pretty good arg.

"Founded as she was under the tutelage of so many gods, Rome surely should not have been assailed and afflicted by such great and horrible calamities, of which I shall mention only a few out of the many. For by the great smoke of her sacrifices, as by a given signal, she summoned to her protection all the many gods for whom she established and provided temples, altars, sacrifices and priests: thereby offending, however, the most high and true God, to Whom alone these rites were justly due. In fact, Rome had lived more happily when she had had fewer gods. But, as she became greater, she considered that she should acquire more gods, just as a bigger ship needs more sailors. She despaired, I believe, of those few gods under whom, in comparison with her worse life to come, she had lived well, deeming them insufficient for the defence of her greatness."

"Not gonna question this feature of pagan mythology as it is also a feature of Christian mythology" really straddling that line between intellectual consistency and special pleading.

100

Passages like this (which are frequent) where Augustine disparages the focus on material goods (food, shelter, etc.) over moral goods (faith, humility, etc.) is where the appeal of Augustine for anti-liberals is most obvious.

"Enough has now been said, I suppose, of those moral and spiritual evils which are especially to be shunned, to show that the false gods of the Romans did nothing to help the people who worshipped them to avoid oppression by the weight of such ills. On the contrary, they caused them to be oppressed by them in ever greater measure. Now, I see, I must speak of the only kind of evils which our adversaries are unwilling to endure: that is, famine, disease, war, pillage, captivity, slaughter and the similar things which we have already mentioned in the first book. For evil men regard as evils only those things which do not make men evil. They do not blush to praise good things yet to remain evil themselves even among the good things that they praise. It vexes them more to have a bad house than a bad life, as if the greatest good for a man were to have everything good but himself."

100

Augustine points out how "secret doctrines" of pagan promoting virtue makes things worse. The decent minority are co-opted to give moral legitimacy to an enterprise whose public facing rituals promote vice.

"Thus, the mingled infamies and cruelties, the scandals and crimes of the divine beings, whether real or feigned, have, at their own insistence, and to avoid incurring their displeasure, been publicly and openly consecrated and dedicated to them in fixed and established festivals. They have been exhibited to all eyes as objects worthy of imitation and fit to be seen. Clearly, by such spectacles, these demons confess themselves to be unclean spirits. By their own base and vicious deeds, whether actual or pretended, whose celebration they request from the shameless and demand from the modest, they attest themselves to be the teachers of a wicked and impure life. Why, then, are they nonetheless reputed to give certain good moral precepts to some few chosen initiates in their shrines and innermost chambers? If they do indeed do this, then the malice of these harmful spirits must be deemed all the more artful and deserving of condemnation. For so great is the force of probity and chastity that the whole, or nearly the whole, of humankind is moved to praise them; nor is there anyone so ruined by vice as to relinquish all sense of honour. Accordingly, unless they somewhere 'transformed themselves into angels of light', as we find written in our Scriptures, the malice of the demons would not fully achieve its purpose of deception. Out of doors, therefore, foul impiety clam-ours unceasingly around the people on every hand, while, inside, a feigned chastity whispers to the few. Shameful things are furnished with a public stage and the praiseworthy are concealed; honour..."

"... hides and dishonour parades; when evil is on display, all assemble to watch; when good is spoken, scarcely anyone is found to listen. It is as if honourable things deserved to be blushed at and the dishonourable glorified. But where does this happen, save in the temples of the demons? Where, save in the dwelling-place of lies? For the secret teaching is intended to ensnare honest men, who are scarce, and the public exhibition of wickedness to keep the many, who are wholly base, from improvement."

And we are back! Disneyland was fun, but experiencing in the context of ICE's second murder of a Minneapolis activist was a bit surreal. What a time to reading a book trying to imagine a world beyond an empire with no moral legitimacy.

A copy of City of God in your humble posters lap with a scone and cup of coffee from one kf my favorite local bakeries in the background.