specially concurring.
¶ 74 A word of caution is in order. The posture of this case is unusual. The plaintiffs here have never faced actual or threatened injury because the defendants take the position that the English Only Amendment is narrow and applies only to official acts. Not content with this narrowing construction, the plaintiffs have taken the position that the Amendment is not limited to official acts and is broad enough to include even legislator-constituent communications. The defendants, however, do not raise a standing or case or controversy defense, and we are left to wonder about its proper resolution.
¶ 75 There is yet a second layer of potential case or controversy question in this case. The defendants concede that if the Amendment is interpreted as broadly as suggested by plaintiffs, then it is unconstitutional. And yet the plaintiffs take the position that if the Amendment is as narrow as the defendants say it is (i.e., applies only to official acts), then it is not unconstitutional. This leaves us with plaintiffs arguing that it is unconstitutional because of its breadth, but no one arguing that it is constitutional notwithstanding its breadth. We thus have no adversariness in connection with the ultimate federal constitutional question. Cf. U.S. Const, art. III, § 2 (requiring the existence of a “case” or “controversy” for federal adjudication); see, e.g., Arizonans For Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 1067-69, 1075, 137 L.Ed.2d 170 (1997) (remanding case for dismissal for lack of case or controversy). To illustrate, the en banc opinion of the United States Court of Appeals for the Ninth Circuit in Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir.1995), was decided by a 6-5 vote, but the contentions of the five dissenting judges in the court of appeals have not been made in this court because the defendants agree with the plaintiffs that if the Amendment is broadly construed, it is unconstitutional.
¶ 76 It is likely, therefore, that were we an Article III court, we would have had to dismiss this case for lack of case or controversy. We are not unaware of a disquieting paradox: because of the lack of adversity, there is a greater risk of error — yet that same lack of adversity diminishes the likelihood of further judicial review.
APPENDIX
Article XXVIII of the Arizona Constitution provides as follows:
ARTICLE XXVIII. ENGLISH AS THE OFFICIAL LANGUAGE
§ 1. English as the official language; applicability
Section 1. (1) The English language is the official language of the State of Arizona.
(2) As the official language of this State, the English language is the language of the ballot, the public schools and all government functions and actions.
(3) (a) This Article applies to:
(i) the legislative, executive and judicial branches of government
(ii) all political subdivisions, departments, agencies, organizations, and instrumentalities of this State, including local governments and municipalities,
(iii) all statutes, ordinances, rules, orders, programs and policies.
(iv) all government officials and employees during the performance of government business.
(b) As used in this Article, the phrase, “This State and all political subdivisions of this State” shall include every entity, person, action or item described in this Section, as appropriate to the circumstances.
*461§ 2. Requiring this state to preserve, protect and enhance English
Section 2. This State and all political subdivisions of this State shall take all reasonable steps to preserve, protect and enhance the role of the English language as the official language of the State of Arizona.
§ 3. Prohibiting this state from using or requiring the use of languages other than English; exceptions
Section 3. (1) Except as provided in Subsection (2):
(a) This State and all political subdivisions of this State shall act in English and in no other language.
(b) No entity to which this Article applies shall make or enforce a law, order, decree or policy which requires the use of a language other than English.
(e) No governmental document shall be valid, effective or enforceable unless it is in the English language.
(2) This State and all political subdivisions of this State may act in a language other than English under any of the following circumstances:
(a) to assist students who are not proficient in the English language, to the extent necessary to comply with federal law, by giving educational instruction in a language other than English to provide as rapid as possible a transition to English.
(b) to comply with other federal laws.
(c) to teach a student a foreign language as part of a required or voluntary educational curriculum.
(d) to protect public health or safety.
(e) to protect the rights of criminal defendants or victims of crime.
§ 4. Enforcement; standing
Section 4. A person who resides in or does business in this State shall have standing to bring suit to enforce this Article in a court of record of the State. The Legislature may enact reasonable limitations on the time and manner of bringing suit under this subsection.