Orrin Judd has the precise answer to Glenn Reynolds's mewlings on partial birth infanticide abortion ("THOSE 'CONSERVATIVES' who are celebrating the passage of partial-birth abortion legislation in the House are guilty of Congressional Activism. Constitutionally, Congress lacks the power to regulate abortion, and it's very difficult to style oneself a defender of limited government and federalism while supporting this legislation"):

It is true, as some are saying, that Congress really has no authority to regulate such things in a truly constitutional system. But neither did the Supreme Court have the authority to invent a "right of privacy", the sole basis for Roe v. Wade. The notion that the more democratic branches of government should defer to the usurpations of the least is not strict constitutionalism but lunacy. If the Court insists on intervening again the states, Congress and the Justice Department should simply ignore its ruling.

If the very system is under attack from within, the other branches should not sit aside quietly.

The Judiciary lacks the power to touch abortion, as well, strictly speaking; but I don't see a parade of Libertoids yammering about that, either (we call this "outcome determinative philosophy," or, more simply, "I know what I like").

I say, remove the issue from Article III review. It's in Congress's power.