For example, the broad political agenda of national land use planning was soundly defeated in the early 1970’s. However, the same basic political objective is rapidly being achieved through various forms of environmental legislation passed in a seemingly piecemeal manner over the past twenty-five years.

When national land use planning was introduced as such in 1973 and 1974, the American people immediately recognized its collectivist objectives and forced its rejection by Congress. The broad long term goal of national land use planning was then effectively advanced through incremental legislation.

Examples of this are wetlands legislation, clean water and air legislation, protection of endangered species and most recently the attempt to control land use adjoining the nations rivers through the proposed American Heritage Rivers Initiative. While the American people twenty-five years ago immediately recognized the Marxist political philosophy behind national land use planning, and rejected it, the identical goal of conveying control of private property rights to government has been achieved "incrementally" under the guise of protecting the environment.

The burgeoning and massive cost of environmental regulation, the criminalization of property owners and the usurpation of police power from the states by federal agencies is alarming an ever growing segment of the American people as they see their liberties diminish in proportion to the expansion of federal administrative power. Unfortunately, one of the most currently popular responses to this crisis of freedom is to attack "incrementalism" while largely ignoring the actual cause of the problem.

The word "incrementalism" is vague and ambiguous. It can have as many different meanings as there are people who use it. Even when we narrow its meaning, as we have in this article, we still have not identified incrementalism as being necessarily good or bad or desirable or undesirable.

In fact, the law which creates private property was not accomplished in one fell swoop of all encompassing legislative genius, but consists instead of a myriad of laws, customs, and court decisions emanating from the fifty states and before that the territories. Most broad doctrines of law, including the law of property, have developed piecemeal over a long period of time and could be said to have developed incrementally.

The answer to the problem of rapidly diminishing liberties and the growing criminalization of property owners is not to be found in attacking the non-issues of incrementalism. The answer is to be found by stepping back away from the conflict long enough to realize that the rapid extinguishment of the peoples common law (property law) rights are in inverse proportion to the rapid expansion of administrative law at all levels of government.

Government by its very nature is administrative. In our system of national government, Congress passes the laws and the executive branch enforces the laws through the regulatory process of its administrative agencies. Congress enacts a law which purportedly the people have demanded through their elected representatives. The law, when enacted, is then made the responsibility of the executive branch for enforcement.

The executive branch instructs the appropriate administrative agency to write the rules and regulations under which the law is to be enforced. Some take greater liberty at this rule making authority than others, but that is where incrementalism in its worst form truly exists. In theory, if not always in fact, these rules and regulations are supposed to reflect the intent of Congress in passing the law. The bureaucratic representatives of the implementing agency then impose regulatory control on the affected citizenry under threat of civil or criminal penalty.

It is not difficult to see that the problem embodied in the loss of liberty and property rights is not whether a law was achieved in the form of a broad, cohesive political thrust or by a gradual accumulation of legislative enactments which achieve the same end result. It all has the same conclusion.

As the legislative process, at both the state and federal level, careens further out of control the people in turn see their liberties and property rights further diminished through more administrative laws, rules and regulations. And, because we as a people have long since lost our sense of property and the defense of it under the common law, we demand that Congress pass more laws to deal with the problem of excess regulation and loss of property rights which in turn ultimately results in more regulation and more bureaucrats to enforce these new regulations and a continuing loss of property rights.

As George Washington warned two centuries ago; government is not beneficence, government is force, government is power. Government administers or enforces laws. The massive growth in the leviathan of administrative laws, rules and regulations is not the result of incrementalism. It is the natural and inescapable consequence of the growth of government. When Congress passes laws whether they are laws to address civil rights, Medicare or endangered species, administrative rules and regulations must be formulated for their enforcement. The cost is calculated in the loss of individual property rights whether that property is a property in the freedom of association, the freedom of choice or real estate.

Congress and the Founders of this nation long ago gave the American people the tools to prevent the massive loss of liberties and the growing state control which manifests itself in American society today. Even sixty years ago the average man or woman on the street was well enough rooted in concepts of property and the common law defense of property that regulatory and physical taking by government were rare. Sixty years ago most citizens had been taught civics in grade school. They realized there was a constitutional Fifth Amendment protection of private property. They knew if government took property rights, government had to pay for it.

The average citizen of the U.S. also understood what Fredrick Bastiat so eloquently expressed in his 1848 treatise, The Law: "The basic premise of the common law is that everyone has a right to protect that which is theirs." Our massive loss of liberty and property in this nation over the last three generations has been accompanied by an incessant clamor of the people for more government benefits and favors.

It has been accompanied by the gradual mortgaging of private property to collateralize the debt of the burgeoning welfare state. Instead of protecting our own property under constitutional provisions designed for that purpose we have contracted our constitutional rights away for the perceived benefits of a welfare state whether those "benefits" be aid to dependant children, social security payments, or agriculture crop subsidies.

In reality, politics is incrementalism. The American people are cynical of our process, so much so that in 1994, they elected a whole new Congress to save our form of republican government. Unfortunately, they learned the harsh reality of Washington and were forced into "business as usual." Politics is a slow process. Administrative agencies and the environmentalists know that and they are striking as fast and furious as possible before politicians muster enough strength to stop them.

If we allow our elected officials to adopt incrementalism to stop the erosion of our liberties, then we will surely lose. An angry gentleman at a Wise Use conference said: "If I have to wait for incrementalism to protect my rights, I’ll be long dead."

To save this nation and remedy the current dilemma, we must return to our roots. The tools provided for us in our Constitution are still available. The United States Court of Federal Claims as well as state Claims Courts still provide an arena for remedying the taking of our property under the protection of common law rules. It is up to us if we will use those remedies and if we will use them in time to prevent a complete collapse of constitutional government in this nation. We must determine whether we want property and liberty or government benefits paid for by mortgaging our property and liberties. We can not have both.