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24 Conn. L. Rev. 147 (1991-1992)
The Limits of the Judiciary: Some Thoughts on Original Intent Theory

handle is hein.journals/conlr24 and id is 167 raw text is: THE LIMITS OF THE JUDICIARY: SOME THOUGHTS ON ORIGINAL INTENT THEORY The Hon. Justice David Al. Shea* W E learn at an early stage of our education in this country that the function of the legislature is to make the laws, of the judici- ary to interpret the laws, and of the executive department to enforce or carry out the laws. At a later stage, at least if one attends law school, he begins to suspect that, so far as the judiciary is concerned, that sim- plistic explanation of the operation of government is not really what is going on and that interpreting the laws is very hard to distinguish from making them. Given the inherent ambiguity of the English language and the ingenuity of lawyers, it is not unusual for judges to be con- fronted with plausible arguments for diverse interpretations of almost any rule of law. With respect to common law rules, which are judicially created legal principles, their application in particular cases poses diffi- culties, but the content of the rules raises no insurmountable obstacles to achieving justice in a case, because it is certainly within the author- ity of the judiciary to modify a rule it has created. Trial court judges or even lower appellate court judges, of course, must be wary of second- guessing by those like me and my colleagues on our court, who have been endowed with the blessing of finality, at least so far as non-federal issues are concerned. Similarly, statutory interpretation presents few philosophical com- plexities, because it is generally accepted that the guiding principle is the intent of the legislature and, if the language of the statute is un- clear, as often happens, we consult the record of its enactment for such gleanings as it may contain indicative of the legislative intent.1 In the absence of guidance from legislative history for resolving the ambigu- * Associate Justice, Connecticut Supreme Court; B.A., Wesleyan University, 1944; LL.B., Yale Law School, 1948. This address was presented by Justice Shea on March 29, 1991, as recipi- ent of the University of Connecticut Law Review Award for 1991. The award is given annually to a member of the legal community who represents excellence in legal scholarship and service to the legal community. 1. Sanzone v. Board of Police Comm'rs, 592 A.2d 912, 918-19 (Conn. 1991).

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