3) Well, it's about time someone in a position of power and influence undermines the notion that the law should regulate morality! More specifically, the law should not prohibit activities or enterprises in which all of the participants are informed and consenting adults. As the National Post's editorial put it, "it is not the role of government to enforce life lessons." If people voluntarily participate in an activity and get hurt as a result, they have the opportunity to learn from their mistakes. The Globe's over-protective parent routine is taking an approach that is well-suited to the early years of childhood and attempting to apply it to full adulthood.
 

The Harm Principle

          To what do we owe the Supreme Court's expansive position on individual liberty? Maybe the Chief Justice had recently dusted off her copy of John Stuart Mill's On Liberty, in which the 19th century English philosopher spelled out his famous harm principle:
 

[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right… The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

          Mill's harm principle is not quite as comprehensive as the non-aggression principle favoured by libertarians. "Preventing harm to others" can be construed narrowly or widely, and if construed widely enough, can actually be used to justify all manner of intervention. If I shop at Wal-Mart, I am harming the Mom-and-Pop down the street by denying them my business, and so the government must step in. If a potentially brilliant surgeon decides to pursue a career as a concert pianist, she is harming those who could have benefited from her surgical skills, and so the government must assign jobs in order to minimise harm. These broadly defined "harms" are simply unavoidable, and any attempt to prevent them would quickly lead to totalitarianism.

          Mill clearly meant his harm principle to be interpreted much more narrowly, in an approximation of the more stringent non-aggression principle. His arguments for allowing people as much liberty as possible are both powerful and uplifting. In the realm of freedom of speech, he argued that even ideas which seemed clearly false should not be censored, for the truth would be that much stronger for having to defend itself. Also, of course, from time to time, the ideas that had seemed clearly false would prove themselves to be true, and the received wisdom would prove to have been mistaken.
 

Experiments in Living

          The same can be said not only of ideas, but of actions too. When people are free to live as they see fit, they make a variety of choices, and then a multitude of different lifestyles can be compared and contrasted. Because people are free to experiment, we can feel more confident in saying, as even the tolerant National Post editors do, that "swinging is an unpopular activity because the damage it does to relationships can generally be expected to outweigh the transient sexual thrills it provides." And again, from time to time, the received wisdom will prove to be mistaken.

          Here's another simple truth that bolsters the case for tolerance: people are different. While it seems painfully obvious that swinging must increase the stresses on a relationship, it is also obvious that some people are much better than others at handling stress. Even more telling, some people are good at handling one kind of stress and therefore make good police officers, for example, but would flounder trying to handle the kinds of stresses a grade three teacher navigates with grace. People are different, and it is certainly plausible that for some couples who are better able to deal with the particular stresses of swinging, the benefits might just outweigh the costs.

          The editors of The Globe and Mail wrote, "You don't need to be a fuddy-duddy to cringe at the Supreme Court's libertarianism." Well, you also don't need to be a libertarian to applaud the Supreme Court in this instance. You just need to be willing to tolerate the choices other people make even when you disagree with those choices; you need to be willing to let people fall down once in a while rather than treat them like little children unable to assume any measure of personal responsibility; and you need to be willing at least to entertain the possibility that maybe, just maybe, you don't know with one hundred percent certainty what's best for everyone else. A little tolerance, a helping of individual responsibility, and a touch of humility – sounds like something even a fuddy-duddy might be able to support.