In this essay I engage with Carol Greenhouse’s work on neoliberalism to think through contemporary efforts to legalize marijuana. My focus is the state of Colorado, which is at the forefront of the marijuana legalization movement. I take inspiration from Greenhouse’s commitment to ethnography (2010, 2011). I am particularly drawn to her use of ethnographic inquiry as a way to revitalize or extend key concepts from social theory, particularly those whose analytical power has been limited by domestication and overuse (Greenhouse 2003, 2005).
Neoliberalism is just such a concept. For some, the term is so frequently invoked to explain our current era and its ills, it functions more like a black box than a means of analysis. For others, the term’s prevalence leads to misapplication, such as labeling any form of audit “neoliberal” (even if some of those subject to audit insist it is socialism in its purest form! [Kipnis 2007, 2008]). In this essay, I argue for the continued relevance of the term neoliberalism to account for a historically specific form of capitalism. I also hold, following Greenhouse, that neoliberalism is best understood through ethnography, itself understood as the “science of contextualization” (Greenhouse 2010). The history of marijuana legalization in Colorado demonstrates this. It exemplifies the lawmaking process in the neoliberal era, and showcases the constitutive contradictions at the heart of neoliberalism. Ethnographic inquiry is uniquely attuned to such contradictions as it allows neoliberalism to be viewed not just as ideology, but as experience (Greenhouse 2010, 2).
What is Neoliberalism?
Neoliberalism can be hard to define. As with any other “-ism” (Marxism, Buddhism, nationalism), definitions emphasize a core set of ideas that perdure through debate and localized instantiations. The term refers generally to a cluster of political commitments in which market values reign supreme. William Davies has written that neoliberalism is “the elevation of market-based principles and techniques of evaluation to the level of state-endorsed norms.” More pithily, it is “the disenchantment of politics by economics” (Davies 2017, xiv).
Greenhouse defines neoliberalism as an approach to government that “supplants regulation by law with market forces, and governmental functions … by private enterprise” (2010, 1). It finds its “ideological coherence” in its emphasis on “the primacy of the private sector, the release of organizations and industries from government regulation, the creation of powerful nonstate transnational institutions and global market regimes, and the assurance of the market’s self-regulating character” (Greenhouse 2010, 1).
In the 1980s, neoliberalism was an oppositional discourse pitched against the Great Society liberalism of the 1960s. Its spirit was embodied in President Ronald Reagan’s famous quip that “the nine most terrifying words in the English language are ‘I’m from the government and I’m here to help.’” The politics of the 1980s were defined by an emphasis on shrinking the role of the federal government, particularly in the provision of social support programs, and a reticence to supporting rights claims.
By the 1990s, the discourse of neoliberalism had achieved bipartisan consensus. It was the vehicle through which elections were won and all manner of governmental concerns were pursued. This included the kinds of concerns that previously would have been framed using the language of rights. These concerns were instead “keyed to the market as the most promising arena for social justice” (Greenhouse 2011, 1). This was a significant change: “Rights did not disappear, but the shift of discourse had weighty consequences … The new consensus did not speak for everyone, but the political spectrum narrowed in ways that made alternatives appear to be moot” (ibid.).
Marijuana Legalization as Neoliberal Drug Policy Reform
The contemporary marijuana legalization movement is a product of this history. Whereas the twentieth century saw the institutionalization of marijuana prohibition, the twenty-first century has seen legalization expand. Legalization can take many forms. Colorado’s model is one of the most significant. Since 2000, Colorado has had a legal medical marijuana program. In 2010 it was formalized through increased state regulations. And in 2012, voters approved a referendum—Amendment 64—that legalized the production, sale, and consumption of marijuana for recreational (not just medical) purposes. State lawmakers modeled the regulations for recreational marijuana on those in place for alcohol and gaming. The centerpiece was the creation of a new commercial market in legal marijuana. While the state would regulate this market, it would not itself be a participant. Instead, a new industry—the retail marijuana industry—was expected to service this market. This industry has since become the face of marijuana legalization.
In its emphasis on markets and market values, Colorado’s approach to legalization exemplifies lawmaking in the neoliberal era. This is most evident in the case of Amendment 64. Though it is thought of as the law that legalized recreational marijuana, what it did specifically was task the state with creating a commercial marijuana market. Proponents emphasized the economic benefits of this market-based approach. They talked about legalization as a job creator and revenue producer for the state. And they were quick to note that the first 40 million worth of marijuana tax revenue would be used for schools (which had the added benefit of easing pressure on other sources of revenue, such as property taxes).
More significantly, Amendment 64 framed commercial markets as a better way to meet existing drug policy goals. These goals included preventing marijuana use by youth and eliminating the illegal marijuana market by putting the drug cartels that supplied and profited from it out of business. This idea, that commercial markets would succeed where prohibition had failed, presaged arguments made by the Department of Justice in 2013. In a memo to federal prosecutors, Deputy Attorney General James Cole argued that a “tightly regulated market” had the potential to effectively fulfill federal drug policy priorities even as its existence flew in the face of federal drug laws.
The Contradictions of the Neoliberal Era: Reconsidering Regulation
Marijuana legalization in Colorado is representative of lawmaking in the neoliberal era in another way. It embodies its contradictions. The conventional account holds that neoliberalism seeks to shrink the state (through privatization and austerity), reduce the reach of law (through deregulation), and replace them both with the invisible hand of the market. But, in so far as this is an accurate account of neoliberal ideology, it rests on a set of contradictions that often goes unremarked. The most significant of these is the fact that market-centered approaches to governance actually depend deeply on both law and the state, especially as conceived under neoliberalism. As Greenhouse notes, “Neoliberal reform ‘arrives’ through state institutions,” even as it promises to dismantle the state in certain respects. Similarly, while neoliberalism champions expansion of the private sector in its approach to governance, “neoliberal reform as a process requires extensive state action through legislatures, courts, and above all, through the executive branch” (Greenhouse 2010, 5–6; emphasis in original).
Acknowledging this contradiction sheds light on a central paradox of the neoliberal era: the expansion of free markets has coincided with an increase in regulation. Contrary to what the triumphalist narrative of neoliberalism would predict, as markets have liberalized, regulations have metastasized. Since the 1980s, the sheer volume of regulation has increased dramatically. To take but one measure of this expansion in the US: during the 1980s and 90s an additional 200–250 pages per million people per year were added to the Federal Register. Similarly, the number of restrictions in the US Code of Federal Regulations increased from around 340,000 in 1970 to over one million in 2014 (Tarko 2017). This trend has been mirrored in the private sector, which has likewise contributed to this regulatory expansion (Braithwaite 2008).
This paradox, described variously as “freer markets, more rules” or “more capitalism, more regulation,” has prompted some scholars to suggest that the proper descriptor for the current era is not “neoliberalism” but “regulatory capitalism.” Braithwaite, for instance, writes convincingly for this position. Against the “neoliberal fairytale” of markets replacing the state, Braithwaite (2008) argues that it has been a process of “reciprocal causation” wherein regulation creates big business which, in turn, fuels the regulatory state. He gives the example of the US nursing home industry in which tighter regulations favored corporate chains and drove out “mom and pop” operations (Braithwaite et al, 2007). This reflects a general pattern under regulatory capitalism:
The regulatory state creates megacorporations, but large corporations also enable regulatory states … In many industry sectors, regulation drives small firms that cannot meet regulatory demands into bankruptcy, enabling large corporates to take over their customers … For this reason, large corporations often use their political clout to lobby for regulations they know they will easily satisfy, but that small competitors will not be able to manage. They also lobby for ratcheting up regulation that benefits them directly (for example, longer patent monopolies) but that are mainly a cost for small business. (Braithwaite 2008, 20; references omitted)
Braithwaite’s point is important, but he overstates the case. Acknowledging the significance of regulation does not turn neoliberalism into a fairy tale. Indeed, Mirowski (2018), in his history of the “neoliberal thought collective” that contributed to neoliberalism’s political success and gave it its ideological coherence, makes a complementary observation: “The political goal of neoliberals is not to destroy the state but to take control of it, and to redefine its structure and function, in order to create and maintain the market friendly culture.” Under neoliberalism, the state is not replaced but recast: its principle function is to create and then regulate markets, and ensure that market participants (businesses, customers) treat each other equitably according to market logic. Neoliberalism is thus less concerned with shrinking the state relative to markets, than with subjecting the state to processes of marketization. State functions may be privatized; or they may simply be restructured internally using techniques taken from the private sector (Birch and Siemiatycki 2016). Markets become the mechanism and means of legitimate state activity, including lawmaking and enforcement.
Legalization, Phase 1: Medical Marijuana
This point was made to me by Ann. I met Ann in a small town outside of Boulder, Colorado. This town had a long history of marijuana growing that predated legalization. Ann had, in her own words, been “put out of business” by Colorado’s legalization scheme. This put her in the unique position of being pro-marijuana but anti-legalization—at least Colorado-style legalization (she voted against Amendment 64). Ann was a longtime proponent of cannabis (“one of the way-back activists trying to get it legalized”). She credited it with saving her child’s life and addressing the illnesses of countless friends, family, and patients. She believed the cannabis plant was as vital to human flourishing as water, and should be as legal as carrots.
Ann operated her own medical marijuana business in the early 2000s. The relevant law of the time was Amendment XX, which went into effect in 2000. Ann praised Amendment XX for its brevity. It was a “four-page law” that passed by referendum and amended the Colorado constitution. The law created an affirmative defense to Colorado’s criminal laws for anyone using or providing marijuana to address a “debilitating medical condition.” The language of the law provided a specific list of acceptable medical conditions and outlined the process through which a person could gain legal access. It involved getting a recommendation from a physician, and a medical card—commonly referred to as a “red card”—from the state.
Ann was part of the activism that turned Amendment XX into a reality. Once it became law, she began working with patients. She treated people for “everything: MS [multiple sclerosis], pain, cancer, macular degeneration, diabetes, pretty much everything that people struggle with.” Ann told several stories of times when she was able to provide people who had found no relief from traditional biomedicine with cannabis-based treatments for pain, seizures, auto-immune disorders, and a range of other ailments. She emphasized the time she took with every patient.
[E]very medical customer that came in I would research their condition, find out what caused it or what they believed caused it, what seemed to work, what doesn’t seem to work, and I was able to figure out what kind of cannabis would work for that person. And I was dead on.
Ann operated under the caregiver model. She described the process of getting licensed as “very easy back then.” “You got a business license and you registered with the state, and that was it. And you collected licenses [from patients] and however many plants they had and you could grow for those people,” she said. As Ann’s description highlights, Amendment XX centered on the patient-caregiver relationship. Caregivers were authorized to grow plants on behalf of their patients—up to six plants per patient—under the law. This allowed those with expertise to do the growing, and addressed the challenge that many medical marijuana patients were not healthy enough to grow their own plants. In this way, Amendment XX sought to provide legal access to cannabis for people suffering from “debilitating medical conditions” in the context of ongoing marijuana illegality at both the state and federal levels.
But the nature of the patient-caregiver relationship was ambiguous under Amendment XX. Government officials faced a principal question: how many patients should any particular caregiver take on? The Colorado Department of Public Health provided an answer by imposing a limit of five patients per caregiver. This rule was successfully challenged in a 2007 lawsuit, on the grounds that it was enacted with insufficient public comment. In 2009, CDPH considered reinstating the five patient limit. Hundreds of activists, caregivers, and patients spoke out against it at a public hearing. When one dispensary owner was asked what he thought his patient limit should be, he responded that even five thousand patients would not be too many. “I’d like to be under the same standards as Walgreens or a Walmart pharmacy,” he said. These advocates were successful and the five patient limit was not reimposed.
Legalization, Phase 2: The Marijuana Industry Emerges and Expands
These events coincided with facilitative changes in federal drug policy that precipitated a dramatic expansion of activity in Colorado’s medical marijuana program. In the spring of 2009, Colorado saw 20,000 new medical marijuana patient applications and the emergence of over 250 marijuana dispensaries. These dispensaries were commercial, retail enterprises. And they were controversial, largely because their status under Amendment XX was ambiguous. Though the amendment mentions “dispensing” marijuana, it does not mention “dispensaries” as such. Consequently, dispensaries in Colorado operated under a particular interpretation of the caregiver model as articulated under Amendment XX. Dispensary owners used the provision of the law that allowed caregivers to grow and dispense cannabis on behalf of patients as the foundation for their expansion into storefront operations. Dispensaries could operate at commercial scale with no limits on the number of patients a caregiver could have. In the case of one dispensary owner, this amounted to approximately 1,200 patients. The number of patients and dispensaries rose in tandem. Between 2008 and 2009, the number of cardholders went from 4,800 to 41,000. And by mid-2010, the number of dispensaries identified by law enforcement had risen to over 900 (Rocky Mountain HIDTA 2014, 3).
These were heady times for the marijuana industry. As Kamin notes, “a Wild West mentality ruled the day—stories abounded of out-of-state financiers flying into Denver with bags of money, seeking to open a dispensary over the weekend” (Kamin 2012, 149). The number of patients continued to increase, by May 2010 there were more than 100,000 registered patients in the state. Fifteen months before, it had been less than 10,000 (ibid.).
State authorities were overwhelmed. CDPHE could not keep up with the influx of applications. Law enforcement, who had supported the proposed five patient limit, could not easily determine who was an authorized operator and who was not. In addition, state legislators voiced concern that the emerging medical marijuana industry was quite different from what was imagined under Amendment XX:
Women in bikinis parading on busy boulevards with sandwich boards advertising “$5 joints” and the appearance of “medical” marijuana dispensaries with names like “Daddy Fat Sacks” and “DrReefer.com” led many to believe that the term “medical” was little more than political cover for the full legalization of recreational marijuana use. When it was revealed that just fifteen Colorado doctors accounted for more than seventy-five percent of all medical marijuana recommendations (and that just five doctors accounted for more than half), criticism of the status quo only intensified. (Kamin 2012, 150)
People responded to how the full-fledged marijuana industry emerged by calling for increased government regulation. These regulations came in 2010 in the form of Senate Bill 1284. This bill created a formal regulatory infrastructure for the commercial sale of legal marijuana. It passed the state legislature after a long and contentious debate that pitted the nascent marijuana industry against law enforcement. Those for and against regulation agreed on one thing: that formal regulation would legitimize the industry and provide post facto legalization of the dispensary model. For this reason, the marijuana industry, particularly larger-scale dispensaries, were most in favor of the regulations proposed under SB 1284. Law enforcement opposed the bill, and sought to implement a model that would eliminate dispensaries altogether. Small operators like Ann were caught in the middle. While they did not want to see dispensaries outlawed, they saw the regulatory scheme proposed by the industry as an existential threat. It would be virtually impossible for them to comply with its many requirements.
Legalization, Phase 3: Eliminating “Knuckleheads” through Regulation
Small operators were right to feel threatened. Certain state legislators explicitly wanted the law to put “mom and pop” operators like Ann out of business. One was State Senator Chris Romer. In making the case for increased regulation, he described an evening he spent with Denver police who responded to a report of a crime at a dispensary. “Every employee was high,” he said, and “a 21-year-old guy was running the place” (Carroll 2010). Romer called this the “knucklehead retail model” (Carroll 2010)—in which people with insufficient expertise and capital operated under the guise of providing medical care to patients. He speculated that such “knucklehead” operations were widespread, making up upwards of 80 percent of the dispensaries in the state (Slevin 2010). Romer was clear that new legislation could and should eliminate such operators: “My intention is to get the thugs and the knuckleheads out of the business” (Slevin 2010).
The version of SB 1284 that passed was a modified version of legislation backed by the industry. It introduced regulations that specified the conditions under which participants in the state’s medical marijuana program could operate. The new regulatory infrastructure favored larger-scale dispensaries, who had the resources necessary to cover the cost of compliance. And it was mostly successful in eliminating “mom and pop” operators from the marijuana market. Ann herself closed in 2010, almost immediately after the bill passed. She was unable to comply with certain provisions (such as the amount of capital one had to have on hand in order to be licensed), and unwilling to comply with others (such as the amount of control she felt she would have to cede to the state). Her fellow smaller-scale operators in town faced a similar fate: according to Ann, all but one closed or sold out to larger commercial operators.
Legalization, Phase 4: Industry Consolidation
The passage of SB 1284 marked a significant shift, not just for Ann and other “mom and pop” operators, but for the marijuana legalization movement as a whole. “[I]t was mostly us activists that opened the businesses when it became legal,” she said.
We knew what we were doing. We’d loved the plant for a long time. We, we cared. We were involved from the heart up. [But State Senator Chris Romer] said that we were all idiots—”knuckleheads” he called us—and that this needed to be run by big corporations and so he put us all out of business.
In addition to contesting her “knucklehead” status, Ann provided a different account of the marijuana market under Amendment XX:
[A]t the time it was, it was a free market, and so there was a lot of people that were growing for their own use.
The freedom to grow for oneself and provide for others also created opportunities to generate additional income.
If you could grow me an extra ounce, that was $400.00 a month for you.
This approach provided a collective benefit.
We saved people’s houses. Everybody in this town, the waitresses, everybody was doing good because there was free, legal money everywhere in town.
There were also benefits to public safety.
And even the cops were like—and not just our local cops—they were like, “Yeah, this is working.” … I had the D.A. at this time … he walked up to me at a town meeting and he shook my hand and he, he, because he knew about me, and he said, “Thank you for doing such a good job.” He said, “You’re our good example.”
In terms of public health, the market provided built-in quality controls by forcing people to provide good patient care and to produce and sell quality cannabis, or go out of business.
[A]t the time we were, we were a free market, and so you had to have the best or people weren’t gonna come … After it sold from people who knew what they were doing and actually loved the plant to corporations, then the care left. And then you, then you started getting … now we have problems with mold, pesticides, and they, they don’t care. I mean, back in those days you wouldn’t have sold somebody moldy pot. It would have been just … “Are you kidding me?!”
For Ann and others, the introduction of the SB 1284 regulations marked the end, rather than the beginning, of the free market in marijuana. It removed those who were there because they “actually loved the plant,” and replaced them with “corporations” who were only in it for the money. It was for these reasons that Ann was against Amendment 64 as well. The landmark referendum that had legalized recreational marijuana had “made things worse” and given the state “a whole lot of clubs to beat on us with and to arrest us with.” Indeed, for Ann, Amendment 64 “did not legalize it. It illegalized it”:
I mean you can get, if you have your, your stuff with you now and it’s not locked up and in the trunk, they can actually charge you with open container. I mean, all of that stuff used to be just … unless you were being bad … In some way, the cops didn’t care. And that’s the way that I think most things should be. Unless you’re being bad in some way, they’re smokin’ a joint, leave ‘em alone.
Framing things in this way, Ann’s account offers an alternative vision for the free market itself. Ann’s version of a free market is one in which both the state and industry play a limited role. Instead, it is people who care—in this case, local networks of longtime residents, activists, and cannabis growers and consumers—who oversee the market, providing a high degree of quality (and) control. For Ann, the free market under Amendment XX worked because it enhanced the emphasis on quality and care that was already present among activists, in a way that was self-reinforcing. Through competition, those who did not care, and did not produce a quality product, were put out of business. Ann’s account highlighted other benefits, including enhancements of public safety, public health, and social support for people in financial crisis.
The regulations that followed SB 1284 and Amendment 64 inverted this dynamic. From Ann’s perspective, the state used its regulatory power to eliminate the existing free market, and replace it with one in which participation was limited to those with access to capital and a willingness to cede significant control to the state. As a result, it was those who did not care about quality who were now thriving, to the detriment of people and plants. Indeed, the conventional growing practices used in the industry, which involve warehouses, chemicals, and other tools of industrialized agriculture, epitomized the problems of increased state regulations and the loss of a genuine free market. “[Y]ou can’t grow these things in warehouses,” she said. “They’re babies. And you can’t grow babies in warehouses. And you can’t care for them adequately. You just … you can’t.”
Marijuana legalization in Colorado reveals the constitutive contradictions of lawmaking in the neoliberal era. On the one hand, the current marijuana legalization movement owes much of its success to neoliberalism. Arguments for legalization framed through the language of the market succeeded where arguments focused on social justice or civil rights claims failed. On the other hand, such successes should not be taken at face value. Ann’s experience of marijuana legalization in Colorado demonstrates the interplay of markets and regulation that is central to regulatory capitalism in the neoliberal era. It illustrates that neoliberalism and regulatory capitalism are not at odds but work together—sometimes, in Ann’s view, to the detriment of the very free markets neoliberalism ostensibly wants to see thrive. Thus the success of neoliberalism rhetorically has enabled the spread of regulation institutionally.
My point here is not to determine whether the early history of marijuana legalization in Colorado was a “Wild West” populated by “thugs and knuckleheads” or a “free market” run by caring people who “love the plant.” Nor is it to engage in the more general “discourse of solutions” that is often the presumptive frame in discussions of major policy changes like marijuana legalization (Greenhouse 2011). My point, rather, is to affirm Greenhouse’s insight that ethnography, understood as the “science of contextualization,” is indeed the science best-positioned to understand neoliberalism. And that such understanding is important if only so that we “do not simply replicate the discursive templates of neoliberalism’s ideological charter” (Greenhouse 2010, 7).
William Garriott is Associate Professor in the Law, Politics, and Society Program at Drake University. He is the author of Policing Methamphetamine: Narcopolitics in Rural America as well as several edited volumes on policing and addiction. He is past co-editor of PoLAR: Political and Legal Anthropology Review and is currently co-editor of the book series, Police/Worlds: Studies in Security, Crime, and Governance with Cornell University Press. His current research is on marijuana legalization. His article, “Change Is In The Air: The Smell of Marijuana, After Legalization,” is forthcoming in Law and Social Inquiry.
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 There is significant debate over terminology within the legalization movement. While marijuana has been the most common term used over the past several decades, and is the language of the law in Colorado and federally, there are explicit efforts underway to shift to the term “cannabis” (Garriott 2020). I will use both marijuana and cannabis in this essay, in recognition of this debate.
 To be sure, this increase has not been absolute or even. One need think only of the deregulation of the banking and finance sector that enabled the global financial collapse that preceded the Great Recession. Similarly, Stiglitz (2004) argues that neoliberal ideologies have been applied in more orthodox fashion to emerging economies because it would benefit the corporate entities who sought to access them, even while those same entities sought regulatory and other legal protections for themselves.