Blazing Through a Federal Red Light: The Insurgent Regulatory War Legalizing Marijuana, 1994-2014

47 Pages Posted: 19 Feb 2015

See all articles by Matthew Cavedon

Matthew Cavedon

affiliation not provided to SSRN

Date Written: May 1, 2014

Abstract

Medicinal and recreational marijuana is rapidly becoming legal in the United States. The cause has won major political victories recently — medical marijuana’s legalization in twenty-one states over the past twenty years and recreational marijuana’s legalization in two in 2012 — despite absolute federal prohibition of the drug for over four decades. This paper will argue that framing—the public’s perception of the narcotic as socially tolerable, instead of an irredeemable danger — rather than formal legal analysis or material factors provides the best explanation for why. It will look at how marijuana policy reform advocates wage “insurgent regulatory war” against federal prohibition, choosing unconventional political tactics to undermine the current narcotics regime.

A refrain throughout this paper will be comparison of these strategies to insurgent warfare as described in the U.S. military’s Counterinsurgency Field Manual. If Clausewitz is correct in saying that “[w]ar is merely the continuation of policy by other means,” it is also true that politics — here, the push for marijuana policy reform — often mirrors the strategies of modern war. There are many similarities between marijuana policy reform advocates and armed insurgents. Both are attempting to take on the United States’ government. Neither can do so through conventional means, so each “aim[s] to win by undermining and outlasting public support” for the government’s policies. Insurgency theory need not be limited to battlefield contexts — the Manual itself defines “an insurgency” as “an organized, protracted politico-military struggle designed to weaken the control and legitimacy of an established government . . . while increasing insurgent control.” Of course, marijuana policy reform advocates are not engaged in a military struggle, but they, like other insurgents, use “all available tools — political, informational . . . and economic” to defeat the federal regime they dislike.

Keywords: marijuana, law, insurgent warfare, counterinsurgency, narcotics, history, federalism, political science, legalization, prohibition, referendum, race, NORML, Allen St. Pierre, Marijuana Policy Project, MPP, Morgan Fox, justice, criminal law, states, organizing, social movement, drugs, constitutional

JEL Classification: N4, K10, I18, K14

Suggested Citation

Cavedon, Matthew, Blazing Through a Federal Red Light: The Insurgent Regulatory War Legalizing Marijuana, 1994-2014 (May 1, 2014). Available at SSRN: https://ssrn.com/abstract=2566348 or http://dx.doi.org/10.2139/ssrn.2566348

Matthew Cavedon (Contact Author)

affiliation not provided to SSRN

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