There is a wry joke that the jurist Edward S Corwin once told: A doctor, an engineer and a politician were debating which of their callings was the most ancient. The doctor claimed that the removal of the rib from Adam’s side was clearly a surgical operation. The engineer replied that even before Adam, the world had to be created out of chaos, surely an engineering feat. “Very true,” said the politician, “but who do you think created the chaos?” Today, one might plausibly rewrite the joke: What might be called the “judicial complex” — that peculiar combination of Supreme Court judges and lawyers — could give politicians a run for their money as originators of chaos. The latest salvo in this vein is the debate over the term “constitutional morality.”

According to reports, the solicitor general, in submissions before the Supreme Court in the Sabarimala case, has expressed scepticism about the judicial use of the term in recent judgments. There is, to be sure, a legitimate criticism to be made of some of its uses. For many, including this columnist, the term is not a judicial standard of adjudication. In an earlier formulation (“What is Constitutional Morality”, Seminar 615, November 2010), I had suggested that constitutional morality refers, instead, to the formal virtues of a constitutional sensibility: Self-restraint, respect for plurality, deference to processes, scepticism towards authoritative claims of popular sovereignty, and a commitment to an open culture of criticism that lies at the heart of constitutionalism. There is also a case, often made in this column, against judicial overreach, against excessive deference to the........

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