Thomas, J., concurring
when it vetoed a bill passed by the legislature that called for a convention to revise New York’s Constitution. 1 C. Lincoln, The Constitutional History of New York 623–626 (1906) (Lincoln). The State Assembly then issued a report lambasting “the Council for usurping the legislature’s role as the democratic representative of the people”; the legislature subsequently enacted a new bill that succeeded in calling for a constitutional convention. Barry 247; Lincoln 626–629. The same sentiment arose at the convention when, echoing arguments that had also been made in Philadelphia against a federal council of revision, opponents of the Council argued that it had “ ‘usurped the power of judging the expediency as well as the constitutionality of bills passed by the legislature’ ” and that it had “ ‘in fact become a third branch of the legislature.’ ” Barry 247 (quoting N. Carter & W. Stone, Reports of the Proceedings and Debates of the Convention of 1821, pp. 55, 79 (1821)). Unsurprisingly, the Council was abolished, and New York’s 1821 Constitution placed the veto power solely in the Governor. Barry 248.
When courts apply the facial overbreadth doctrine, they function in a manner strikingly similar to the federal council of revision that the Framers rejected. The doctrine contemplates that courts can declare laws unconstitutional in the abstract without the law ever being applied against any individual in an unconstitutional manner. Along the way, courts must examine the sum total of the law’s application to people who are not parties to any proceeding; courts then weigh the law’s various applications to determine if any unconstitutional applications outweigh the law’s constitutional sweep or might “chill” protected speech. That is nothing short of a society-wide policy determination of the sort that legislatures perform. Yet, the Court has never even attempted to ground this doctrine “in the text or history of the First Amendment.” Sineneng-Smith, 590 U. S., at ___–___ (concurring opinion) (slip op., at 2–3). Instead, it has
