Congress, upheld by the courts, had specifically included (law of 1870) under "writings" in the Constitution a "statue," "statuary," "model," without requiring the artist to make a preliminary sketch (if that be specifically a writing)--otherwise, as sculptors are not "inventors" making "discoveries," they could not be protected at all; and in other countries protection has been extended to oral delivery of an address presumably but not necessarily written. It might be claimed, under a restrictive interpretation of the Constitution, that only works specifically relating to "science and useful arts" might be protected, although literature and the fine arts are admittedly especial subjects of copyright. While it is for the judiciary and not for the legislature to construe or interpret the Constitution, the right of Congress to pass laws based upon its understanding of the Constitution, subject to the final decision of the federal courts, has not been challenged. And the code of 1909 by its classification (sec. 5) and its inclusive clause (sec. 4) is most comprehensive in this respect. {Sidenote: Supreme Court decisions} The U. S. Supreme Court, in 1884, in the decision of Burrow-Giles Lith. Co. _v._ Sarony, extending the principles of the copyright act to cover photographs, said through Justice Miller: "By 'writings' is meant the literary productions of those authors, and Congress very properly has declared these to include all forms of writings, printing, engraving, etching, etc., by which the ideas in the mind of the author are given visible expression. The only reason why photographs were not included in the extended list of 1802 is probably that they did not exist, as photography as an art was then unknown." It seems evident that the phrase "visible expression" as used in this decision was intended to give a broad definition and not to narrow the definition by the exclusion, for instance, of "audible expression," as otherwise the _performance_ of a drama or of a musical composition could not be included under copyright protection. This view is confirmed by the later decision of the same court, in 1899, in Holmes _v._ Hurst: "It is the intellectual production of the author which the copyright protects, and not the particular form which such production ultimately takes; and the word 'book' is not to be understood in its technical sense as a bound volume, but any species of publication which the author selects to embody his literary product." {Sidenote: Originality and merit}