The word “actual” is a check and balance
Against Congress and the President

“As a matter of law, the adjective “actual” was not written into the Constitution in modification of “Service” in relation to the President’s authority as “Commander in Chief * * * of the Militia” for no purpose other than the cosmetic one of filling up space on the line. Not at all. “‘In expounding the Constitution * * * , every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added.’” (footnote 1)

The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 872-873.

Also see Misconstrued Role of the President as “Commander in Chief” • “Executive Power” • Misconstrued Role of Congress • Misconstrued Role of the Supreme Court  • Militia: Permanent Constitutional Institutions 


The Word “Actual” in the Constitution

In addition, as to all of the constitutional justifications for exercise of Congress’s power “[t]o provide for calling forth the Militia”, WE THE PEOPLE—doubtlessly with such as the example of Virginia’s Governor Dunmore fresh in their minds (footnote 2)—took care to draft the Constitution in especially strict terms. With respect to the Militia, the limiting adjective “actual” appears in two places in the Constitution, both times conjoined with the noun “service”:

(i) “[t]he President shall be Commander in Chief * * * of the Militia of the several States, when called  into the actual Service of the United States”; (footnote 3) and

(ii) “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”. (footnote 4)

Such usage was no novelty in pre-constitutional American Militia law. Quite the contrary: Both Virginia’s and Rhode Island’s Militia statutes had employed the term “actual service” in precisely this way, (footnote 5) as well as employing the adjective “actual” to modify other nouns but for the same general purpose. (footnote 6) In all of those contexts, “actual” meant (and as far as the Constitution is concerned today continues to mean) “[r]eally in act; not merely potential” and “not purely in speculation” (footnote 7)—“‘real’ as opposed to ‘nominal’” (footnote 8)—“[e]xisting in act or reality * * * ; in fact” (footnote 9)—“[i]n action at the time being” (footnote 10)—not just “potential, possible, virtual, speculative, * * * theoretical, or nominal” (footnote 11)—and most assuredly not “seeming[ ], pretended[ ], or feigned[ ]”. (footnote 12) (In a different constitutional context, of course, “actual” could and does have a different connotation. (footnote 13)

  • As a matter of law, the adjective ‘actual’ was not written into the Constitution for no purpose other than the cosmetic one of filling up space on the line.

    As a matter of law, the adjective “actual” was not written into the Constitution in modification of “Service” in relation to the President’s authority as “Commander in Chief * * * of the Militia” for no purpose other than the cosmetic one of filling up space on the line. Not at all. “‘In expounding the Constitution * * * , every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added.’” (footnote 1)  And as a matter of fact as plain as the words themselves, “actual” was added specifically to constrain the noun it modifies. For, without “actual”, the sentence would nonetheless parse perfectly well as to its general intent. The addition of “actual” supplies, not simply verbal emphasis for the sake of mere style, but a legally necessary condition precedent that must be satisfied before the Militia can come, and if they are to remain, under the President’s command: namely, that their “Service” for the United States must be demonstrably other than speculative, let alone feigned, but instead existing in fact, and especially in the scientific sense veritable or falsifiable—because “[a]greeable to truth or to fact”. (footnote 2) Thus, the adjective “actual” supplies a constitutional safeguard against some rogue President who might attempt to commandeer “the Militia of the several States” in whole or in part, or to threaten individual Militiamen with prosecution under purported “martial law”, in aid of his aspirations to usurpation or tyranny. Or against some rogue faction in Congress that might enact a statute which purported “[t]o provide for calling forth the Militia” for some purpose other than the three constitutionally permissible ones. (footnote 3) Or against some combination of the two.

    Footnotes:

    1.) Williams v. United States, 289 U.S. 553, 572-573 (1933).

    2.) Webster’s Revised Unabridged Dictionary (Springfield, Massachusetts: G. & C. Merriam Company, 1913), at 1603 (“veritable”). Accord, Webster’s New International Dictionary of the English Language, Second Edition, Unabridged (Springfield, Massachusetts: G. & C. Merriam Company, 1954), at 2832, definition 1.

    3.) See U.S. Const. art. I, § 8, cl. 15.

  • ‘The Militia of the several States’ have their own chain of command that enables them to function with complete constitutional authority and autonomy even if the link to a rogue President is broken perforce of his own misdeeds.

    “[T]he Militia of the several States” have their own chain of command that enables them to function with complete constitutional authority and autonomy even if the link to a rogue President is broken perforce of his own misdeeds. For when the Militia are not “called into the actual Service of the United States”, they are subject to the commands of only their own “Officers”—because the Constitution “reserv[es] to the States respectively, the Appointment of the Officers”. (footnote 1)

    Besides this constitutional authority and autonomy, “the Militia of the several States” wield the “‘[p]olitical power [that] grows out of the barrel of a gun’”. (footnote 2) And presumably their members—WE THE PEOPLE themselves—possess the intestinal fortitude to use that power, the moral fibre not to misuse it, as well as the common sense and self-interest to realize that, if they fail to use it or succeed only in misusing it, they will cut their own throats, perhaps literally.

    Footnotes:

    1.) U.S. Const. art. I, § 8, cl. 16.

    2.) Quotations From Chairman Mao Tse-tung (Peking, China: Foreign Languages Press, First Edition, 1966), at 61.

  • Footnote

    1.) Williams v. United States, 289 U.S. 553, 572-573 (1933).

    2.) See The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States” by Dr. Edwin Vieira, Jr., Multimedia CD, (2012), page 570-597.

    3.) U.S. Const. art. II, § 2, cl. 1 (emphasis supplied).

    4.) U.S. Const. amend. V (emphasis supplied).

    5.) EN-1962 — VIRGINIA: CHAP. V, An Act for making more effectual provision against Invasions and Insurrections, § VIII, AT A GENERAL ASSEMBLY, BEGUN AND HELD AT Williamsburg, the first day of February, 1727, in Laws of Virginia, Volume 4, at 200 (“the officers and soldiers which shall be drawn out into actual service”); CHAP. II, An Act for amending the several acts, for making provision against invasions and insurrections, and for amending and explaining an act passed this present session of Assembly, intituled, An Act for raising the sum of twenty five thousand pounds for the better protection of the inhabitants on the frontiers of this colony, and for other purposes therein mentioned, § X, At a General Assembly, begun and held at the Capitol, in Williamsburg, on Thursday the twenty-fifth day of March, 1756, in Laws of Virginia, Volume 7, at 31 (“when the militia of any county shall be drawn out into actual service”); CHAP. XXXIX, An Act for making provision against Invasions and Insurrections, § VIII, AT A GENERAL ASSEMBLY, BEGUN AND HELD AT The College in Williamsburg, the twenty- seventh day of October, 1748, in Laws of Virginia, Volume 6, at 116 (“the officers and soldiers drawn out into actual service”); CHAP. IV, An Act for reducing the several acts for making provision against invasions and insurrections into one act, § XII, At a General Assembly, begun and held at the Capitol, in Williamsburg, on Thursday, the twenty-fifth day of March, 1756, and from thence continued by several prorogations to Thursday the fourteenth of April, one thousand seven hundred and fifty-seven, in Laws of Virginia, Volume 7, at 112 (“the officers and soldiers drawn out into actual service”); CHAP. I, An act for appointing commissioners to examine and state the accounts of the militia lately ordered out into actual service, and for other purposes therein mentioned, § I, At a General Assembly, begun and held at the Capitol, in the City of Williamsburg, on Tuesday the 26th of May, 1761, and from thence continued by several prorogations to Thursday the 12th of January, 1764, in Laws of Virginia, Volume 8, at 9 (“several companies of the militia * * * drawn out into actual service”); CHAP. XXXI, An act to continue and amend the act for the better regulating and disciplining the militia, § IV, At a General Assembly, begun and held at the Capitol in Williamsburg, on Thursday the sixth day of November[,] 1766, in Laws of Virginia, Volume 8, at 247-248 (“the militia * * * shall be drawn out into actual service”); CHAP. I, An act to embody militia for the relief of South Carolina, and for other purposes, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Public Buildings in the Town of Richmond, on Monday the first day of May, one thousand seven hundred and eighty, in Laws of Virginia, Volume 10, at 225 (“when ordered into actual service”); CHAP. VIII, An act to amend the act for regulating and disciplining the militia, and for other purposes, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Public Buildings in the Town of Richmond, on Monday the seventh day of May, one thousand seven hundred and eighty-one, in Laws of Virginia, Volume 10, at 416 (“every militia-man ordered into actual service”), 418 (“any militia-man deserting while in actual service”); CHAP. XXVIII, An act for amending the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections, §§ VII and XI, AT A GENERAL ASSEMBLY Begun and held at the Public Buildings in the City of Richmond, on Monday the eighteenth day of October[,] one thousand seven hundred eighty-four, in Laws of Virginia, Volume 11, at 487-488 (“called forth into actual service”, “be in actual service”, “discharge from actual service”), 492 (“to send into actual service any militia”); CHAP. I, An act to amend and reduce into one act, the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections, §§ VI and XI, AT A GENERAL ASSEMBLY BEGUN AND HELD At the Public Buildings in the City of Richmond, on Monday the seventeenth day of October[,] one thousand seven hundred and eighty-five, in Laws of Virginia, Volume 12, at 18-19 (“called forth into actual service”, “be in actual service”, “discharge from actual service”), 22 (“send into actual service any militia”); CHAP. II, An act to amend the act for regulating and disciplining the militia, and for other purposes, AT A GENERAL ASSEMBLY BEGUN AND HELD At the Public Buildings in the City of Richmond, on Monday the sixteenth day of October[,] one thousand seven hundred and eighty-six, in Laws of Virginia, Volume 12, at 234 (“when called into actual service”); CHAP. II, An act to amend the several acts respecting the militia, § V, AT A GENERAL ASSEMBLY BEGUN AND HELD At the Public Buildings in the City of Richmond, on Monday the fifteenth day of October[,] one thousand seven hundred and eighty-seven, in Laws of Virginia, Volume 12, at 433 (“to order out into actual service”).

         RHODE ISLAND: Proceedings of the General Assembly, held for the State of Rhode Island and Providence Plantations, at East Greenwich, on Tuesday, the 10th day of December, 1776, in Rhode Island Records, Volume 8, at 66 (“in actual service”); At the GENERAL ASSEMBLY of the GOVERNOR and COMPANY of the STATE of Rhode-Island and Providence Plantations, begun and holden, by Adjournment, at Providence, within and for the said State, on Monday the Twenty-third Day of December, One Thousand, Seven Hundred and Seventy-Six, in Rhode Island Acts and Resolves, Volume 8 [9], at {16} (“in actual Service”); An Act in addition to an act, entituled “An act for the relief of persons of tender consciences; and for preventing their being burthened with military duty”, Proceedings of the General Assembly, held for the State of Rhode Island and Providence Plantations, at South Kingstown, on Thursday, the 17th day of April, 1777, in Rhode Island Records, Volume 8, at 207 (“detached for actual service”); At the General Assembly of the Governor and Company of the State of Rhode- Island and Providence Plantations, begun and holden (in Consequence of Warrants issued by his Excellency the Governor) at Providence, within and for the State aforesaid, on Friday the Nineteenth Day of December, One Thousand Seven Hundred and Seventy-seven, in Rhode Island Acts and Resolves, Volume 9 [10], at {11} (“called into actual Service”); Proceedings of the General Assembly, held for the State of Rhode Island and Providence Plantations, at Providence, on Thursday, the 28th day of May, 1778, in Rhode Island Records, Volume 8, at 417 (“in actual service”); AT the GENERAL ASSEMBLY of the Governor and Company of the State of Rhode-Island, and Providence-Plantations, begun and holden (in Consequence of Warrants issued by his Excellency the Governor) at Providence, within and for the State aforesaid, on Tuesday, the Third Day of July, One Thousand Seven Hundred and Eighty-one, in Rhode Island Acts and Resolves, Volume 11 [14], at {3} (“held in actual Service”). See also At the General Assembly of the Governor and Company of the State of Rhode-Island and Providence Plantations, begun and holden (in Consequence of Warrants issued by his Excellency the Governor) at Providence, within and for the State aforesaid, on Monday the Seventh Day of July, One Thousand Seven Hundred and Seventy-seven, in Rhode Island Acts and Resolves, Volume 9 [10], at {6} (“on actual Duty”).

    6.) EN-1963 — VIRGINIA: ACT VII, An Act for the better defence of the Country, ATT A GENERALL ASSEMBLY, BEGUN AT JAMES CITTY THE SIXTEENTH DAY OF APRILL, ONE THOUSAND SIX HUNDRED EIGHTY- FOUR, in Laws of Virginia, Volume 3, at 20 (“in any actual engagement against the enemie”); CHAP. XXII, An Act, to prevent the Inhabitants of the Borough of Norfolk, from being compelled to serve in the Militia of the County of Norfolk; and to exempt Sailors or Seamen, in actual pay on board any Ship or Vessel, from serving in the Militia, § VI, AT A GENERAL ASSEMBLY, SUMMONED TO BE HELD AT The Capitol, in the City of Williamsburg, on the first day of August, [1735]. And from thence continued, by several prorogations, to the first day of November, 1738, in Laws of Virginia, Volume 5, at 82 (“during the time he is in actual pay”); CHAP. I, An act for raising Volunteers to join the Grand Army, AT A GENERAL ASSEMBLY BEGUN AND HELD At the Capitol, in the City of Williamsburg, on Monday the fourth day of May, one thousand seven hundred and seventy eight, in Laws of Virginia, Volume 9, at 446 (“an actual invasion of this commonwealth”); CHAP. XII, An act for speedily recruiting the quota of this state for the continental army, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Public Buildings in the Town of Richmond, on Monday the first day of May, one thousand seven hundred and eighty, in Laws of Virginia, Volume 10, at 259 (“except in case of actual invasion”); CHAP. I, An act to raise two legions for the defence of the state, AT A GENERAL ASSEMBLY, BEGUN AND HELD At the Public Buildings in the Town of Richmond, on Thursday the first day of March, one thousand seven hundred and eighty-one, in Laws of Virginia, Volume 10, at 391 (“in cases of actual or threatened invasion”); CHAP. X, An act to amend and reduce the several acts of assembly for the inspection of tobacco, into one act, § XLVII, AT A GENERAL ASSEMBLY Begun and held at the Public Buildings in the City of Richmond, on Monday the fifth day of May, one thousand seven hundred and eighty-three, in Laws of Virginia, Volume 11, at 246 (“except in case of actual invasion or insurrection”).

         RHODE ISLAND: An ACT for putting this Colony in a Posture of Defence, and for rend’ring the Militia in the several Towns thereof, more Useful in Time of an Actual Invasion, LAWS, Made and pass’d by the General Assembly of His Majesty’s Colony of Rhode-Island, and Providence-Plantations, in New-England; held by Adjournment, at Newport, the Twenty Second Day of May, 1744, in Public Laws of Rhode Island, 1744, at 288 (“in the Time of an Actual Invasion”); At the General Assembly of the Governor and Company of the State of Rhode-Island and Providence Plantations, begun and holden (in Consequence of Warrants issued by his Excellency the Governor) at Providence, within and for the State aforesaid, on Monday the Seventh Day of July, One Thousand Seven Hundred and Seventy-seven, in Rhode Island Acts and Resolves, Volume 9 [10], at {5} (“called upon actual Duty”); An ACT for the confiscating the Estates of certain Persons therein described, AT the GENERAL ASSEMBLY of the Governor and Company of the State of Rhode-Island, and Providence-Plantations, begun and holden at South-Kingstown, within and for the State aforesaid, on the last Monday in October, One Thousand Seven Hundred and Seventy-nine, in Rhode Island Acts and Resolves, Volume 10 [12], at {24} (“during the actual Invasion of Enemies”).

    7.) Samuel Johnson, A Dictionary of the English Language, First Edition (London, England: W. Strahan, 1755), and Fourth Edition (London, England: W. Strahan, 1773), definitions 2 and 3 in both the First (1755) and the Fourth (1773) Editions. (Neither edition serially numbered its pages.)

    8.) Astor v. Merritt, 111 U.S. 202, 213 (1884).

    9.) Webster’s Revised Unabridged Dictionary (Springfield, Massachusetts: G. & C. Merriam Company, 1913), at 18, definition 2. Accord, Webster’s New International Dictionary of the English Language, Second Edition, Unabridged (Springfield, Massachusetts: G. & C. Merriam Company, 1954), at 27, definition 2.

    10.) Webster’s Revised Unabridged Dictionary (Springfield, Massachusetts: G. & C. Merriam Company, 1913), at 18, definition 3. Accord, Webster’s New International Dictionary of the English Language, Second Edition, Unabridged (Springfield, Massachusetts: G. & C. Merriam Company, 1954), at 22, definition 4.

    11.) Webster’s Revised Unabridged Dictionary (Springfield, Massachusetts: G. & C. Merriam Company, 1913), at 18, definition 2. See also Webster’s New International Dictionary of the English Language, Second Edition, Unabridged (Springfield, Massachusetts: G. & C. Merriam Company, 1954), at 27, Ant. & Syn.; Webster’s Third New International Dictionary of the English Language (Springfield, Massachusetts: G. & C. Merriam Company, 1971), at 22, definition 3.

    12.) Black’s Law Dictionary (St. Paul, Minnesota: West Publishing Company, Revised Fourth Edition, 1968), at 53.

    13.) The only other place in which the adjective “actual” appears in the original Constitution is in Article I, Section 2, Clause 3 (emphasis supplied): “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.” In this context, “actual” plays a prosaic part, importing simply the “Enumeration” that is really performed, as opposed to the “potential” or “theoretical” formula set out in the clause’s first sentence. See Webster’s Revised Unabridged Dictionary, (Springfield, Massachusetts: G. & C. Merriam Company, 1913), at 18, definition 2. AccordWebster’s Third New International Dictionary of the English Language (Springfield, Massachusetts: G. & C. Merriam Company, 1971), at 22, definition 2b.