The answer, of course, is both. But what if that option is not available? What if you have to choose? There is nothing in the picture itself that definitively tells you it's one and not the other. Whatever you interpret the picture to be, that's what it is. This is the very root of the most fundamental flaw in the argument against judges "making law." Because the very essence of what judges do--what no one disputes--is the act of judicial interpretation. And although most of the time one can simply follow earlier interpretations, this cannot always be the case. Those earlier interpretations had to origianlly come from somewhere.
Indeed, the process of interpretation repeatedly encounters situations where there is no cut-and-dried right answer, where (a) there is no earlier interpretation to follow, or (b) two or more previous interpretations clash with one another, or (c) (less commonly) situations have so changed that the earlier interpretation seems anachronistic, out of step with the broader sweep of the law.
Is there a right to privacy in the Constitution? This is a very stark example of the faces/vases dilemma. While there are many little (and not-so-little) examples that percolate up from the details of conflicting lines of case law, the question about a constitutional right to privacy seems to emanate from the very heart of our Constitution--a heart that whispers so softly, that different people hear different things. But whatever one hears, if one is honest one must admit that one is making law by interpreting it one way or the other.
I am quite comfortable saying there is a Constitutional right to privacy, and I am equally comfortable saying it is an interpretation that makes it so. It could not be otherwise.
